The definitions for some of the defined terms used in this Agreement are set forth below. The definitions for other defined terms are set forth elsewhere in this Agreement. Unless otherwise stated herein, all section references are to sections contained in the body of this Agreement.
“Administrators” means Authorized Users designated by Customer as having administrative privileges within the Platform to act on Customer’s behalf, including, without limitation, organization administrators, show administrators, and show editors.
“Advertisement” or “Ads” means materials or messages in any format that promote an Advertiser’s brands, products, and/or services.
“Advertisement Parameters” means the content parameters for Advertisements provided by Customer to SoundStack from time to time.
“Advertiser” means a company that advertises its brands, products, and/or services via the Advertisements within the Inventory.
“Affiliate” means, with respect to any entity, any other entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such entity. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.
“Agency” means an entity engaged by an Advertiser to manage its advertising campaigns, in whole or in part.
“Agreement” means, collectively, these Terms of Service and the Order to which they are attached or from which they are linked.
“API” means an application program interface.
“Applicable Laws” means all laws, ordinances, rules, and regulations applicable to the parties’ activities under this Agreement, including, without limitation, all applicable Privacy Laws.
“Audio Player” means the audio player(s) to be Integrated with the Platform (i.e., Customer’s audio player and/or any third-party audio players such as those of TuneIn, Spotify, and Apple.
“AUP” means SoundStack’s Acceptable Use Policy, which is available at https://soundstack.com/aup and incorporated herein by reference.
“Authorized User” means an employee of Customer, or an individual consultant engaged by and acting under the direction and control of Customer, who is designated by Customer as having the right to access and use the Platform pursuant to this Agreement.
“Beta Features” means features, functionalities, and/or modules of the Platform that are not generally available to SoundStack’s customers for production use.
“CCPA” means the California Consumer Privacy Act at Cal. Civ. Code Section 1798.100-1798.199 and any subsequent legislation including any amendments or regulations.
“CDN” means SoundStack’s global content delivery network.
“Code” means any pixels, tags, software, APIs, or other code provided to Customer by SoundStack in connection with any Integrations.
“Confidential Information” means: (i) with respect to SoundStack, the Platform, any and all source code, the Documentation, all pricing and fees relating to this Agreement, and any other non-public information or material regarding SoundStack’s legal or business affairs, financing, customers, properties, or data, and all Intellectual Property Rights in any of the foregoing; and (ii) with respect to Customer, any non-public information or material regarding Customer’s legal or business affairs, financing, customers, properties, or data and all Intellectual Property Rights in any of the foregoing. Notwithstanding any of the foregoing, Confidential Information does not include information which: (a) is or becomes public knowledge without any action by, or involvement of, the party to which the Confidential Information is disclosed (the “Receiving Party”); (b) is documented as being known to the Receiving Party prior to its disclosure by the other Party (the “Disclosing Party”); (c) is independently developed by the Receiving Party without reference or access to the Confidential Information of the Disclosing Party and is so documented; or (d) is obtained by the Receiving Party without restrictions on use or disclosure from a third person who, to the Receiving Party’s knowledge, does not owe a duty of confidentiality to the Disclosing Party (e.g., contractual, fiduciary, or otherwise).
“Connector” means a third-party link created by SoundStack or via SoundStack Monetize that connects a Digital Property with Demand Partners delivered via VAST or OpenRTB to transact Customer’s Inventory.
“Content” means all content and materials made available on or through a Digital Property, including, without limitation, live audio streams and podcasts.
“CPM” means the cost per thousand Impressions.
“Demand Partners” means third-party sources of Advertisements, including, without limitation, Advertisers, Agencies, ad exchanges, and demand side platforms (DSPs).
“Digital Property” means a digital property (e.g., website, mobile site, mobile application, Audio Player, or other online service or property) that is owned, controlled, and/or operated by Customer and designated by Customer as a “Digital Property” in the Order.
“Documentation” means documentation relating to the Platform or this Agreement that SoundStack generally provides to its customers.
“Editorial Adjacency Guidelines” means any Demand Partner guidelines provided to Customer regarding the types of Content the Ads are prohibited from appearing near.
“Egress” means distribution of a live stream or podcast to Users.
“Fees” means any and all fees for the Services, as set forth in the Order, including, without limitation, any setup, configuration, installation, ad serving, and distribution fees.
“Forced Click” means where a person, automated script, or computer program imitates a legitimate User clicking on an Ad for the purpose of generating a cost per click (or giving the impression of artificially high click-through rates) without having actual interest in the target of an Advertisement’s link.
“GDPR” means the General Data Protection Regulation no. 2016/679.
“Impressions” means the number of times an Advertisement has been delivered to Users through the Inventory.
“Ingest” means: (i) with respect to a podcast, an individual show (i.e., a collection of episodes concerning a single podcast); and (ii) with respect to a live station, an individual station.
“Integrate” or “Integration” means the installation and configuration of Code within the servers owned, controlled, and/or operated by Customer that make available the Digital Properties, Inventory, and the Content in accordance with the Policies.
“Intellectual Property Rights” means any and all intellectual property rights throughout the world, including, without limitation, any and all patents, patent applications, copyrights, copyright applications, moral rights, trademarks, trade secret rights, rights to know-how, inventions and algorithms, and any and all similar or equivalent rights.
“Inventory” means a block of impressions within a Digital Property designated by Customer as being available by Customer for sale by SoundStack through the Platform.
“Malicious Code” means any computer virus, Trojan horse, worm, time bomb, or other similar code or hardware component designed to disable, damage, or disrupt the operation of, permit unauthorized access to, erase, destroy, or modify any software, hardware, network, or other technology.
“Net Revenue” means the revenue actually collected by SoundStack from Demand Partners for the placement of Advertisements within the Inventory less: (i) any third-party advertising fees incurred by SoundStack in connection therewith, including, without limitation, DSP fees, ad serving fees, and data targeting fees; (ii) any Taxes; and (iii) any documented and out-of-pocket pro-rated costs and expenses (including reasonable attorneys’ fees) that SoundStack incurs in attempting to collect such revenue from Demand Partners.
“Personal Information” means any information about an individual whose disclosure is protected or otherwise regulated by any Privacy Law.
“Platform” means SoundStack’s proprietary audio-as-a-service (AaaS) platform through which it provides the Services.
“Policies” means SoundStack’s policies, procedures, specifications, and technical guidelines made available to Customer via the Platform, which SoundStack may update from time to time.
“Privacy Laws” mean any applicable federal and state laws or regulations relating to the collection, use, and protection of Personal Information.
“Prohibited Content” means content that: (i) is illegal under Applicable Law; (ii) violates any third party’s Intellectual Property Rights; (iii) contains indecent or obscene material; (iv) contains libelous, slanderous, or defamatory material, or material constituting an invasion of privacy or misappropriation of publicity rights; (v) promotes unlawful or illegal goods, services, or activities; (vi) contains false, misleading, or deceptive statements, depictions, or sales practices; (vii) violates any Editorial Adjacency Guidelines; or (viii) contains Malicious Code.
“Prohibited Activities” means Customer, directly or indirectly, (i) creating Impressions or user activity via Forced Clicks or other fraudulent means; (ii) intentionally incentivizing Users to click on Advertisements without the prior written approval of SoundStack; (iii) serving or driving traffic to Advertisements using any downloadable applications without the prior written approval of SoundStack; (iv) altering any Advertisements, ad code (including text, html, or graphics), or display mechanisms, images, or code related thereto; (v) interfering with, modifying, minimizing, or obscuring any Advertisement; (vi) modifying or rendering ineffective any tag, pixel, or code that allows SoundStack or its partners to perform targeting or analytics related to Advertisements; (vii) redirecting a User away from any web page accessed by a User after clicking on any part of an Advertisement (“Advertiser Page”), providing a version of the Advertiser Page different from the page a User would access by going directly to the Advertiser Page, or interspersing any content between the Advertisement and the Advertiser Page; (viii) causing an Advertisement to be displayed on any website, mobile property, or online service other than the specific Digital Property from which the applicable Inventory was received; or (ix) knowingly serving or driving traffic using any artificial means such as robots, bot farms, or any non-human means.
“Services” means the services ordered by Customer and provided by SoundStack pursuant to, and in accordance with, the Order.
“SoundStack Engine” means SoundStack’s proprietary services that focus on the orchestration, delivery, and distribution of live audio streams and podcast delivery across the CDN.
“SoundStack Insights” means SoundStack’s proprietary services that focus on audience measurement and analytics, performance reporting, and metadata conditioning.
“SoundStack Marketplace” means SoundStack’s global digital marketplace where Demand Partners can place targeted Advertisements to specific segments across a collection of inventory, made available from Supply Partners, accessed via ad networks and agency trading desks.
“SoundStack Monetize” means SoundStack’s proprietary services that focus on direct ad serving, programmatic enablement, connectors, and inventory representation through SoundStack Marketplace.
“Supply Partner” means third-party sources of Advertising Inventory, including, without limitation, publishers, podcasters, and audio networks.
“Taxes” means any federal, provincial, or local sales, PST, GST, HST, VAT, foreign withholding, use, property, excise, service, or similar transaction taxes.
“Term” shall mean the term set forth in the Order.
“User” means an end user of a Digital Property.
Appointment; Grant of Rights. To the extent Customer designates on the Platform particular Inventory for sale by SoundStack hereunder, Customer hereby: (i) appoints SoundStack as its non-exclusive representative for the sale of such Inventory until Customer rescinds said appointment in accordance with the terms of this Agreement; (ii) grants SoundStack authority to promote, open, manage, and negotiate the terms of sale of Inventory with prospective and actual Demand Partners in accordance with the Advertisement Parameters; (iii) grants SoundStack the right to serve and to have served Advertisements into the Inventory on behalf of Demand Partners; and (iv) collect from Demand Partners all monies due and payable in connection with the sale of such Inventory.
Customer’s Obligations and Restrictions. In addition to its other obligations and restrictions hereunder, including, without limitation, Section 4.2 and Section 4.3, if Customer designates particular Inventory for sale by SoundStack hereunder, Customer shall: (i) comply with any Editorial Adjacency Guidelines; and (ii) display or run the Advertisements with the audio turned on and in connection with Content that is User-requested and initiated (i.e., no “autoplay” Content).
Customer Acknowledgment. Customer acknowledges and agrees that: (i) SoundStack is not the creator or owner of the Advertisements and therefore shall have no liability with respect to the Advertisements; and (ii) if any Advertisement violates the Advertisement Parameters and Customer provides SoundStack with prompt written notice of the same, SoundStack’s sole obligation, and Customer’s sole remedy, shall be SoundStack’s using commercially reasonable efforts to replace the Advertisement with an Advertisement that complies with the Advertisement Parameters in all material respects.
Appointment; Grant of Rights. To the extent Customer designates on the Platform particular live station(s) and/or podcast(s) for distribution by SoundStack hereunder (collectively, the “Distributed Content”), Customer hereby: (i) appoints SoundStack as its non-exclusive distributor for such Distributed Content until Customer rescinds said appointment in accordance with the terms of this Agreement; and (ii) grants SoundStack the right and license to reproduce, distribute, publish, publicly perform, and transmit such Distributed Content via the CDN. SoundStack shall not have the right to cut, edit, dub, alter, or modify the Distributed Content in any way, except as necessary in connection with the insertion of Advertisements in accordance with this Agreement, without the prior, written approval of Customer in each instance. If Customer desires SoundStack to host the RSS feed associated with the Distributed Content, the parties shall note this in the applicable Order.
Clearances. Customer shall deliver the Distributed Content to SoundStack fully “cleared.” Without limitation of the foregoing, Customer shall timely obtain or cause to be obtained, and pay for, any and all releases, licenses, consents, permissions, and rights necessary for SoundStack to have the right to reproduce, market, distribute, publish, publicly perform, and transmit the Distributed Content via the CDN without SoundStack having any obligation to obtain any permission from, or make any payment to, any third party, including, without limitation, any performance rights organizations, unions, guilds, or any person who rendered services in connection with any of the Distributed Content or whose voice, performance, name, likeness, or persona is incorporated in any of the Distributed Content and with respect to all audio content, sound recordings, musical compositions, and other copyrighted material incorporated in any of the Distributed Content.
Access to Platform. During the Term: (i) SoundStack shall provide the Administrators access to the Platform’s administrative console; (ii) the Administrators shall create the accounts for (and manage) all Authorized Users; (iii) SoundStack shall provide Authorized Users access to the Platform; and (iv) SoundStack shall be responsible for hosting the Platform and performing the Services. Customer is responsible for the acts and omissions of its Authorized Users and any other person who accesses and uses the Platform using any of Customer’s or its Authorized Users’ access credentials. Customer shall be solely responsible for any acquisition, implementation, support, or maintenance of third-party products or services purchased by Customer that may Integrate with the Platform, including, without limitation, any third-party Audio Players.
Integrations. SoundStack shall provide to Customer the Code necessary for the Integrations. Unless otherwise set forth in the Order, Customer shall be responsible for performing all Integrations in accordance with the Policies, at Customer’s own expense.
Restrictions on Use. Customer shall not (and shall not authorize or knowingly permit any third party to): (i) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code, algorithms, file formats, or interface protocols of the Platform or of any files contained therein; (ii) copy, modify, adapt, translate, resell, distribute, or sublicense the Platform or the Documentation or make any use thereof not expressly permitted in this Agreement; (iii) make the Platform available on a “service bureau” basis; (iv) remove or modify any proprietary markings or restrictive legends placed on the Platform or the Documentation; (v) use the Platform in violation of this Agreement, the Policies, or any Applicable Law; (vi) access the Platform or the Documentation in order to build a competitive solution or to assist someone else to build a competitive solution; (vii) engage in any Prohibited Activities; (viii) violate SoundStack’s AUP; or (ix) introduce into the Digital Properties, the Content, or the Platform any Prohibited Content or Malicious Code.
Beta Features. From time to time, SoundStack may invite Customer to try Beta Features at no charge. Customer may accept or decline any such trial in its sole discretion. Beta Features are for evaluation purposes only and not for production use, are not considered part of the Platform under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise expressly agreed to by SoundStack, any Beta Feature trial period will expire upon the date that a version of the Beta Feature becomes generally available to all of SoundStack’s customers for production use or upon the date that SoundStack elects to discontinue such Beta Feature. SoundStack may discontinue Beta Features at any time in its sole discretion and may never make them generally available as part of the Platform. SoundStack will have no liability for any harm or damage arising out of or in connection with any use of a Beta Feature, and Customer uses any Beta Feature at its own risk.
Modifications; No Contingency for Future Commitments. SoundStack may, in its sole discretion, provide updates to the Platform from time to time, including without limitation, by adding, deleting, or modifying features to improve the user experience; provided, however, that during the Term, such additions, deletions, or modifications to features will not decrease the overall functionality or security of the Platform. Unless otherwise expressly set forth in the Order, Customer agrees that payment of the Fees under this Agreement is not contingent on the delivery of any future functionalities or features or any other future commitments.
Passwords; Unique Identifiers. SoundStack will provide Customer with account access information, which may include one or more passwords (“Passwords”). Authorized Users may be required to provide certain additional information that will assist in authenticating their identity when they login in the future (“Unique Identifiers”). When registering for an account with SoundStack, Customer and its Authorized Users must provide true, accurate, current, and complete information. Customer is responsible for the confidentiality and use by it of its Passwords and Unique Identifiers, as well as for any use, misuse, or communications entered through the Platform by Authorized Users or other third parties (unless arising from SoundStack’s breach of this Agreement). Customer will promptly inform SoundStack of any need to deactivate a Password or change any Unique Identifier. In the event of a Platform security breach, SoundStack reserves the right to delete or change Customer’s Passwords or Unique Identifiers at any time and for any reason. SoundStack will notify named Customer contacts of the Password or Unique Identifier change. SoundStack will not be liable for any loss or damage caused by any unauthorized use of Customer’s account not caused by SoundStack or those under its control.
Cooperation. Customer acknowledges that SoundStack’s ability to provide the Services is dependent on its having access to (and being able to interact time with) Customer’s employees and designated third parties and also dependent on SoundStack being provided with (and continuing to receive) complete, accurate, up-to-date, and timely materials, information, and data. Customer agrees to provide such access, materials, information, and data to SoundStack and will cause any designated third parties to cooperate with SoundStack for SoundStack to implement and provide the Services on the schedules adopted by the parties. In performing the Services, SoundStack shall be entitled to rely on any oral or written instructions, notices, or other communications, including electronic transmissions, from Customer and its Authorized Users, employees, officers, directors, members, agents, and other service providers which SoundStack reasonably believes to be genuine, valid, and authorized.
Access. SoundStack shall make the Platform accessible to Authorized Users in accordance with the Documentation and this Agreement.
Service Levels and Support. SoundStack shall use commercially reasonable efforts to make the Platform accessible twenty four (24) hours per day, seven (7) days per week, 99.9% of the time, except for: (i) scheduled weekly maintenance, with the schedule for such maintenance to be provided to Customer; (ii) required repairs; and (iii) any loss or interruption due to a Force Majeure Event (as defined below). Phone support is available from 9:00 AM to 7:00 PM Eastern Standard Time Monday through Friday, excluding SoundStack-observed holidays. SoundStack accepts support questions twenty-four (24) hours per day, seven (7) days per week via the Platform. Responses to support questions submitted through the Platform are provided during phone support hours only. SoundStack attempts to respond to support questions within one (1) business day, although it does not promise or guarantee any specific response time.
Fees and Taxes. The Fees, as set forth in the Order, are due and payable as set forth below. Fees and other charges described in the Order do not include Taxes now or hereafter levied, all of which will be Customer’s obligation. Any applicable direct pay permits or valid tax-exempt certificates must be provided to SoundStack prior to the execution of the Order. If SoundStack is required to pay Taxes on Customer’s behalf, SoundStack shall invoice Customer for such Taxes, and Customer shall pay SoundStack for such Taxes in accordance with Section 6.2. For the avoidance of doubt, SoundStack shall be responsible only for any taxes related to its income, property, franchise, or employees.
Payments. SoundStack shall invoice Customer the Fees and any applicable Taxes as set forth in the Order, and unless otherwise set forth therein, all amounts are due and payable within fifteen (15) days from Customer’s receipt of the invoice. Customer acknowledges and agrees that, in order to use the Services, it may be required to use one or more payment processing interfaces or programs provided by SoundStack or a third-party vendor, and Customer may be required to agree to additional terms required for payment processing. If Customer elect to pay via credit card, Customer hereby authorize SoundStack to charge Customer’s credit card the associated Fees and any applicable Taxes. Customer further authorize SoundStack to use a third party to process payments and hereby consents to the disclosure of Customer’s billing information to such third party. Customer must keep its contact information, billing information, and credit card information up to date with SoundStack.
Late Payments. In the event that any invoiced amount not subject to a good-faith dispute is not received by SoundStack by the due date as set forth in Section 6.2, then without limiting SoundStack’s rights and remedies, SoundStack may: (i) charge monthly interest on the outstanding balance (one and one half percent (1.5%) or the maximum rate permitted by Applicable Law); (ii) condition future Services and additional orders on payment terms shorter than those specified in Section 6.2; (iii) suspend the Services pursuant to Section 10.1; and/or (iv) terminate this Agreement in accordance with, and pursuant to, Section 10.2.
Non-Refundable. Unless otherwise expressly provided for in this Agreement, all Fees paid under this Agreement are non-refundable.
Revenue Share Payments.
In connection with SoundStack’s sale of Inventory pursuant to Section 2, SoundStack will separately bill Demand Partners for their respective Inventory purchases.
Within forty-five (45) days following the end of each calendar month, SoundStack shall deliver a report (the “Report”) to Customer setting out the number of Impressions actually served for such calendar month and calculating the amount of Net Revenue due to Customer for such month. The amounts due will be equal to Customer’s share of Net Revenue set forth in the Order.
SoundStack shall pay the amounts due under Section 6.5(b) within one hundred twenty (120) days after it issues the Report.
All amounts shall be paid in the currency specified in the Order; provided that if no currency is specified, the currency shall be United States Dollars.
Required Tax Documentation. If Customer is a US entity, Customer shall provide to SoundStack an accurate Form W-9 upon request. If Customer is a non-US entity, Customer shall provide to SoundStack an accurate Form W-8 upon request. Customer further agrees to provide SoundStack with any additional requested Tax information.
Confidentiality. At all times the Receiving Party will protect and preserve the Confidential Information of the Disclosing Party as confidential, using no less care than that with which it protects and preserves its own highly confidential and proprietary information (but in no event less than a reasonable degree of care), and will not use the Confidential Information for any purpose except to perform its obligations and exercise its rights under this Agreement, including as directed by the Disclosing Party. The Receiving Party may disclose, distribute, or disseminate the Disclosing Party’s Confidential Information to any of its officers, directors, members, managers, partners, employees, contractors, or agents (collectively, its “Representatives”), provided that the Receiving Party reasonably believes that its Representatives have a need to know and such Representatives are bound by confidentiality obligations at least as restrictive as those contained herein. Subject to this Section 7.1, the Receiving Party will not disclose, distribute, or disseminate the Confidential Information to any third party, other than its Representatives, without the prior written consent of the Disclosing Party; provided, however, SoundStack may disclose Customer’s Confidential Information as required to perform its obligations hereunder. The Receiving Party will at all times remain responsible for any violations of this Agreement by any of its Representatives. If the Receiving Party becomes or may become legally compelled to disclose any of the Disclosing Party’s Confidential Information (whether by deposition, interrogatory, request for documents, subpoena, civil investigative demand, or other process or otherwise), to the extent not prohibited by Applicable Law, the Receiving Party will provide the Disclosing Party prompt prior written notice of such requirement so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Section. If such protective order or other remedy is not obtained or the Disclosing Party waives compliance with the provisions of this Section, the Receiving Party may furnish only that portion of the Confidential Information which it is advised by its counsel is legally required to be disclosed, and will use commercially reasonable efforts to insure that confidential treatment will be afforded such disclosed portion of the Confidential Information.
Feedback. During the Term, Customer may elect to provide SoundStack with feedback, comments, and suggestions with respect to the Platform and/or the Services (“Feedback”). Customer agrees that SoundStack will be free to use, reproduce, disclose, and otherwise exploit any and all such Feedback without compensation or attribution to Customer.
Data Processing. Customer agrees that SoundStack may use and disclose any data collected in connection with the insertion of Advertisements within the Inventory as follows: (i) SoundStack may use such data for SoundStack’s internal business purposes; (ii) SoundStack may disclose such data to its third-party service providers that assist it in providing the Services; (iii) SoundStack may disclose such data as may be required by Applicable Law or legal process; and (iv) SoundStack may disclose such data where it is aggregated with data unrelated to Customer and is not identified as relating to Customer, provided that such aggregated data does not include Personal Information.
Customer Obligations. Customer represents, warrants, and covenants that: (i) it is solely responsible for assessing the lawfulness of processing and meeting all the legal requirements regarding the processing and sharing of Users’ Personal Information with SoundStack and SoundStack’s sub-processors according to applicable Privacy Laws; (ii) it shall provide Personal Information in compliance with all Privacy Laws; (iii) it has fully complied with transparency principles and provided to the Users an accurate privacy notice; (iv) it has gathered the explicit consent of the Users for the processing of their Personal Information under GDPR and/or posted a “Do not sell my personal information” link on the Digital Properties under CCPA, as applicable, and shall communicate, in both cases, the Users’ consent/opt-out to SoundStack; (v) the request for consent shall comply with the requirements under the GDPR, including presenting the explicit consent mechanism in a manner which is clearly distinguishable from other matters, is intelligible and easily accessible, and uses clear and simple language; (vi) it shall keep Users’ Personal Information up to date, accurate, and complete; (vii) it shall inform Users of their right to withdraw consent at any time, and Customer shall effectuate any User’s withdrawal of consent; and (viii) it shall honor access, deletion, opt-in, and opt-out rights and requests. Customer further acknowledges and agrees that it shall: (x) be solely responsible for any information Customer provides to SoundStack, including the legality of such information, and ensure that Customer has all necessary rights and permissions to provide such information to SoundStack and for SoundStack to collect, retain, use, disclose, or otherwise process Personal Information; and (y) notify SoundStack of a User’s withdrawal of consent under GDPR or a Consumer’s opt-out of the sale of Personal Information under CCPA, provide SoundStack with updates on any modifications to the User’s Personal Information and User’s exercise of rights under Privacy Law, and provide such information in an interoperable format and in a manner reasonably acceptable to SoundStack. SoundStack will not be liable for any processing contrary to a User’s choice if Customer fails to comply with such requirements.
Title. As between SoundStack and Customer: (i) SoundStack retains all right, title, and interest, including, without limitation, all Intellectual Property Rights, in and to Platform, the Documentation, the Code, and any other materials provided by SoundStack hereunder, and Customer shall have no rights with respect to the same other than those license rights expressly granted under this Agreement; and (ii) Customer retains all right, title, and interest, including, without limitation, all Intellectual Property Rights, in and to the Content, the Distributed Content, and the Digital Properties, and SoundStack shall have no rights with respect to the same other than those license rights expressly granted under this Agreement.
License to Customer Marks. Customer hereby grants SoundStack a non-exclusive license to use any and all of Customer’s tradenames, trademarks, service marks, logos, show titles, and station names, as designated, and in a form provided, by Customer (collectively, the “Customer Marks”) to (i) perform the Services hereunder; and (ii) to market, promote, and advertise the Platform and the Services in a manner approved in advance by Customer. SoundStack acknowledges and agrees that all goodwill generated by the use of the Customer Marks shall accrue to the benefit of Customer.
Suspension for Non-Payment. SoundStack may suspend the Services upon ten (10) days’ notice if any undisputed invoiced amount due to it is over thirty (30) days past due. SoundStack will not suspend the Services while Customer is disputing the invoiced amount reasonably and in good faith and is cooperating diligently to resolve the dispute. Customer shall promptly reimburse SoundStack for any reasonable expenses of collection, including costs, disbursements, and reasonable outside legal fees SoundStack incurs, to the extent necessitated by Customer’s refusal to pay amounts that Customer is not disputing in good faith.
In the event of a material breach of this Agreement by a party, the other party may terminate this Agreement by giving thirty (30) days prior, written notice to the breaching party; provided, however, that this Agreement shall not terminate if the breach is curable and the breaching party has cured the breach before the expiration of such thirty (30) day period.
This Agreement is terminable immediately on written notice by a party if the other party commits a material breach of this Agreement and the breach is not curable or if the other party: (i) voluntarily institutes insolvency, receivership, or bankruptcy proceedings; (ii) is involuntarily made subject to any bankruptcy or insolvency proceeding and such proceeding is not dismissed within ninety (90) days of the filing of such proceeding; (iii) makes an assignment for the benefit of creditors; or (iv) undergoes any dissolution or cessation of business.
Each party may terminate this Agreement as set forth in the Order.
SoundStack may terminate this Agreement upon written notice under the limited circumstances set forth in Section 12.3.
Customer may terminate this Agreement upon written notice under the limited circumstances set forth in Section 14.6.
Effect of Termination. In the event of any termination or expiration of this Agreement: (i) each party shall promptly pay the other party for all amounts payable by such party hereunder as of the effective date of termination or expiration; (ii) all rights and licenses granted hereunder shall immediately cease; (iii) Customer and its Authorized Users shall immediately cease all access to, and use of, the Platform and the Documentation; (iv) SoundStack shall cease distribution of any Distributed Content and sale of any Inventory; and (iv) the Receiving Party will either return to the Disclosing Party (or provide the Disclosing Party with written certification of the destruction of) all documents, computer files, and other materials containing any Confidential Information of the Disclosing Party that are in the Receiving Party’s possession, custody, or control.
Survival. Sections 1, 2.3, 6 (until all monies due and payable hereunder are paid), 7, 9.1, 10.3, 10.4, 11.4, 12, 13, and 14 shall survive any expiration or termination of this Agreement.
Mutual Representations and Warranties. Each Party represents and warrants that: (i) this Agreement constitutes its valid and binding obligation and is enforceable against it in accordance with the terms of this Agreement; and (ii) the execution and delivery of this Agreement by it and the performance of its obligations and exercise of its rights hereunder: (a) will not conflict with or violate any Applicable Law; or (b) are not in violation or breach of, and will not conflict with or constitute a default under, any contract, agreement, or commitment binding upon it, including, without limitation, any non-disclosure, confidentiality, non-competition, or other similar agreement.
Representations and Warranties of SoundStack. In addition to the representations and warranties set forth in Section 11.1, SoundStack represents and warrants that any Services it provides will be performed in a timely, professional, and workmanlike manner.
Representations and Warranties of Customer. In addition to the representations and warranties set forth in Section 11.1, Customer represents and warrants that the Content and Distributed Content do not infringe, violate, or misappropriate any third-party Intellectual Property Rights, privacy rights, publicity rights, or violate any Applicable Law.
Disclaimer. SOUNDSTACK DOES NOT REPRESENT THAT: (I) EVERY ERROR IN THE PLATFORM OR EVERY PROBLEM RAISED BY CUSTOMER WILL BE RESOLVED; (II) CUSTOMER WILL ACHIEVE ANY CERTAIN THRESHOLD OF NET REVENUE OR AUDIENCE; OR (III) SOUNDSTACK WILL BE ABLE TO FILL ALL THE INVENTORY WITH ADVERTISEMENTS. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 11.1 AND SECTION 11.2, THE PLATFORM, THE CODE, THEIR COMPONENTS, THE DOCUMENTATION, ANY REPORTING, THE SERVICES, AND ALL OTHER MATERIALS, DATA, AND SERVICES PROVIDED BY SOUNDSTACK HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND SOUNDSTACK MAKES NO WARRANTIES WITH RESPECT TO THE SAME OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, TITLE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. TO THE EXTENT THAT SOUNDSTACK MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
Indemnification by SoundStack. Subject to Section 12.2, SoundStack shall defend, indemnify, and hold harmless Customer and its officers, directors, managers, and employees from any and all liabilities, losses, damages, fines, penalties, costs, and expenses, including reasonable attorneys’ fees (collectively, “Losses”) incurred by them in connection with any third-party claim, action, or proceeding (each, a “Claim”): (i) arising from SoundStack’s gross negligence or willful misconduct; and/or (ii) alleging that the use of the Platform in accordance with this Agreement infringes, violates, or misappropriates any third-party Intellectual Property Rights.
Exceptions to SoundStack Indemnification Obligations. SoundStack shall not be obligated to indemnify, defend, or hold harmless the parties set forth in Section 12.1 to the extent that the Claim arises from: (i) use of the Platform in combination with modules, apparatus, hardware, software, or services not provided by SoundStack; (ii) use of the Platform in a manner that breaches this Agreement or any Applicable Law; or (iii) the alteration or modification of the Platform by a party other than SoundStack.
Infringement Claims. In the event that SoundStack reasonably determines that the Platform is likely to be the subject of a Claim of infringement, violation, or misappropriation of third-party Intellectual Property Rights, SoundStack shall have the right (but not the obligation), at its own expense and option, to: (i) procure for Customer the right to continue to use the Platform as set forth hereunder; (ii) replace the infringing components of the Platform with other components with the same or similar functionality that are reasonably acceptable to Customer; or (iii) suitably modify the Platform so that it is non-infringing and reasonably acceptable to Customer. If none of the foregoing options is available to SoundStack on commercially reasonable terms, SoundStack may terminate this Agreement without further liability to Customer, in which case SoundStack shall promptly provide Customer with a pro-rata refund of any Fees paid, but not used, by Customer. This Section 12.3, together with the indemnity provided under Section 12.1, states Customer’s sole and exclusive remedy, and SoundStack’s sole and exclusive liability, regarding infringement, violation, or misappropriation of any Intellectual Property Rights of a third party.
Indemnification by Customer. Customer shall defend, indemnify, and hold harmless SoundStack, its Affiliates, and its and its Affiliates’ respective officers, directors, managers, and employees from any and all Losses incurred by them in connection with any Claim: (i) arising from Customer’s gross negligence or willful misconduct; (ii) arising from Customer’s breach of this Agreement; and/or (iii) alleging that the Content or Distributed Content infringes, violates, or misappropriates any third-party Intellectual Property Rights, privacy rights, publicity rights, or violates any Applicable Law.
Procedure for Handling Indemnification Claims. In the event of any Claim for which indemnification is available, the indemnified party shall give prompt written notice of any such Claim to the indemnifying party; provided, however, that the failure of the party seeking indemnification to give timely notice hereunder will not affect rights to indemnification hereunder, except to the extent that the indemnifying party demonstrates actual damage caused by such failure. The indemnifying party shall have the right to control and direct the investigation, defense, and settlement of each such Claim. The indemnified party shall reasonably cooperate with the indemnifying party (at the indemnifying party’s sole cost and expense) in connection with the foregoing. The indemnified party may participate in the defense of the Claim with counsel of its own choosing, at its own cost and expense, on a strictly monitoring basis. The indemnifying party shall not enter into any settlement or resolution of any Claim that would constitute an admission of guilt or liability on the part of the indemnified party, without the indemnified party’s express prior written consent (such consent not to be unreasonably withheld, conditioned, or delayed).
Liability Exclusion. SUBJECT TO SECTION 13.3, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY (NOR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM SUCH OTHER PARTY’S RIGHTS) FOR CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOST REVENUES OR PROFITS, LOSS OF USE, OR LOSS OF GOODWILL OR REPUTATION) WITH RESPECT TO ANY CLAIMS BASED ON CONTRACT, TORT, OR OTHERWISE (INCLUDING NEGLIGENCE AND STRICT LIABILITY) ARISING OUT OF THIS AGREEMENT, REGARDLESS OF WHETHER THE PARTY LIABLE OR ALLEGEDLY LIABLE WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF.
Limitation of Damages. SUBJECT TO SECTION 13.3, EACH PARTY’S MAXIMUM LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, OR OTHERWISE), WILL NOT EXCEED THE AGGREGATE AMOUNT OF THE FEES AND REVENUE SHARE PAID AND PAYABLE TO SOUNDSTACK BY CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM ARISES.
Exceptions. NOTWITHSTANDING THE FOREGOING, THE EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH IN SECTION 13.1 AND SECTION 13.2 SHALL NOT APPLY TO: (i) A PARTY’S INDEMNIFICATION OBLIGATIONS; PROVIDED, HOWEVER, THAT SOUNDSTACK’S LIABILITY FOR INDEMNIFICATION SHALL BE CAPPED, IN THE AGGREGATE, AT ONE HUNDRED THOUSAND UNITED STATES DOLLARS (USD$100,000); (ii) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; (iii) A PARTY’S FAILURE TO PAY ANY UNDISPUTED SUMS DUE HEREUNDER; OR (iv) CUSTOMER’S BREACH OF SECTION 4.3.
Notices. Unless otherwise specified herein, all notices and other communications between the parties (other than routine operational communications) required or permitted by this Agreement or by Applicable Law, will be deemed properly given, if given by: (i) personal service; (ii) registered or certified mail, postage prepaid, return receipt requested; or (iii) nationally or internationally recognized private courier service to the respective addresses of the parties set forth above or such other address as the respective parties may designate by like notice from time to time. Notices so given shall be effective upon: (a) receipt by the party to which notice is given; or (b) on the fifth (5th) business day following mailing, whichever occurs first.
Relationship of the Parties. Each party is an independent contractor of the other party. Nothing herein shall constitute a partnership between or joint venture by the Parties, or constitute either party the agent of the other.
Assignment. Neither party may assign or otherwise transfer any of its rights or obligations under this Agreement without the prior, written consent of the other party; provided, however, that each party may, upon written notice to the other party and without the consent of the other party, assign or otherwise transfer this Agreement: (i) to any of its Affiliates; or (ii) in connection with a change of control transaction (whether by merger, consolidation, sale of equity interests, sale of all or substantially all assets, or otherwise). Any assignment or other transfer in violation of this Section shall be null and void. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns.
Force Majeure. Neither party shall be liable for any failure or delay in the performance of its obligations under this Agreement to the extent such failure or delay or both is caused, directly or indirectly, without fault by such party, by any reason beyond its reasonable control, including, without limitation, fire, flood, earthquake, elements of nature or acts of God, acts of state, acts of war, terrorism, riots, civil disorders, rebellions, revolutions, quarantines, pandemics, embargoes, and other similar governmental action (each a “Force Majeure Event”). Any party so delayed in its performance will promptly notify the other and describe in reasonable detail the circumstances causing such delay. In such event, the performance times shall be extended for a period of time equivalent to the time lost because of the excusable delay; provided, however, if the delay or failure continues for more than thirty (30) consecutive days, the party not relying on the excusable delay may terminate this Agreement upon written notice to the other party.
Governing Law, Venue. The validity, interpretation, and performance of this Agreement shall be governed by the laws of the State of New York without giving effect to the conflicts of laws provisions thereof. Any disputes, controversies, or claims in connection with or arising out of this Agreement, its negotiation, breach, existence, validity, or termination, shall proceed in a federal or state court located in the State of New York, Borough of Manhattan. Each party hereby irrevocably submits to the exclusive jurisdiction of such courts. Each party irrevocably waives, to the fullest extent permitted by Applicable Law, any objection to the laying of venue in such courts of any legal action or proceeding arising out of or relating to this Agreement and any claim that any such action or proceeding has been brought in an inconvenient forum. Service of process shall be made in any manner allowed by Applicable Law.
Modification. Any modification to this Agreement must be in a writing signed by both parties or in a writing acknowledged and accepted by both parties (e.g., an e-mail or a click-through modification). Notwithstanding the foregoing, SoundStack may modify these Terms of Service at any time by posting such modification on Customer’s individual account in the Platform or providing Customer written notice of such modification, including via email, and any such modification shall automatically go into effect thirty (30) days after it is so posted or such written notice is provided (the “Modification Effective Date”). In the event of a material modification pursuant to the immediately prior sentence, Customer shall have the right to terminate this Agreement at any time prior to the Modification Effective Date on written notice to SoundStack; provided, that, if Customer fails to provide timely notice of such termination, the modification shall automatically become effective as of the Modification Effective Date, and Customer shall have no right to terminate this Agreement pursuant to this Section 14.6.
No Waiver. The rights and remedies of the parties to this Agreement are cumulative and not alternative. No waiver of any rights is to be charged against any party unless such waiver is in writing signed by an authorized representative of the party so charged. Neither the failure nor any delay by any party in exercising any right, power, or privilege under this Agreement shall operate as a waiver of such right, power, or privilege, and no single or partial exercise of any such right, power, or privilege shall preclude any other or further exercise of such right, power, or privilege or the exercise of any other right, power, or privilege.
Severability. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement will remain in full force and effect, and, if legally permitted, such offending provision will be replaced with an enforceable provision that as nearly as possible effects the parties’ intent.
Entire Agreement. This Agreement contain the entire understanding of the parties with respect to the subject matter hereof and supersede all prior agreements and commitments with respect thereto. There are no other oral or written understandings, terms, or conditions, and neither party has relied upon any representation, express or implied, not contained in this Agreement. In the event of any conflict between any terms or conditions contained in these Terms of Service and the Order, the terms and conditions of this Agreement shall govern. Notwithstanding the foregoing, provisions of these Terms of Service may be modified in the Order only by an express statement specifically identifying the Section(s) of these Terms of Service to be modified.