General Terms and Conditions

1.         UPDATES. 

In the event these General Terms are updated, a new version of these General Terms will be published on SoundStack’s website at soundstack.com, and the date will be noted above.  Unless the Order specifically states otherwise, any reference to these General Terms in an Order shall be deemed to be a reference to the then-current version of these General Terms published on the SoundStack website as of the date of the Order.  Any modifications relating to the Agreement are governed by Section 14.6.

2.         STRUCTURE OF THE AGREEMENT.

Each Order shall incorporate these General Terms and one or more applicable Addenda by reference.  The Order, together with these General Terms, the applicable Addenda, the Privacy Notice, and the DPA (each as defined below) comprise the entire Agreement between the parties with respect to the subject matter hereof and supersede all prior agreements and commitments with respect thereto.  The parties may, by mutual written agreement, modify these General Terms or the applicable Addenda in an amendment (each, an “Amendment”) or in the Order.  Any conflict among or between the terms and conditions of the documents making up the Agreement, shall be resolved in accordance with the following order of precedence (in descending order of precedence): (i) the Order; (ii) the Amendment; (iii) the DPA; (iv) the Privacy Notice; (v) the Addenda; (vi) the General Terms; and (vii) any additional document referenced in the Agreement.

3.        DEFINITIONS.

3.1         “Addendum” means the terms and conditions set forth in an addendum to the General Terms  that has been incorporated into an Order pursuant to Section 2.

3.2        “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.

3.3        “Advertisement” or “Ads” means materials or messages in any format that promote an Advertiser’s brands, products, and/or services.

3.4        “Advertiser” means a company that advertises its brands, products, and/or services via the Advertisements.

3.5        “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.

3.6        “Agency” means an entity engaged by an Advertiser to manage its advertising campaigns, in whole or in part.

3.7        “Agreement” means an Order together with the General Terms, any applicable Addenda, and any Amendments.

3.8        “API” means an application program interface.

3.9        “Applicable Laws” means all laws, ordinances, rules, and regulations applicable to the parties’ activities under the Agreement, including, without limitation, all applicable Privacy Laws.

3.10     “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).

3.11      “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 the Agreement.

3.12     “Beta Features” means features, functionalities, and/or modules of the Platform that are not generally available to SoundStack’s customers for production use.

3.13     “Buyer” means third-party sources of Advertisements, including, without limitation, Advertisers, Agencies, ad exchanges, and demand side platforms (“DSPs”).

3.14     “Code” means any pixels, tags, software, APIs, or other code provided to Customer by SoundStack in connection with the Agreement.

3.15     “Confidential Information” means:  (i) with respect to SoundStack, the Platform, any and all source code, the Documentation, all pricing and fees relating to the 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).

3.16     “Content” means all content and materials made available on or through a Digital Property, including, without limitation, live audio streams and podcasts.

3.17      “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.

3.18     “Distributed Content” means particular live station(s) and/or podcast(s) that Customer has designated on the Platform for distribution by SoundStack hereunder.

3.19     “Documentation” means documentation, policies, procedures, specifications, and technical guidelines relating to the Platform that SoundStack provides to Customer through https://support.soundstack.com/ or directly via email on an as-needed basis, including API documentation.

3.20    “Editorial Adjacency Guidelines” means any Buyer guidelines provided to Customer regarding the types of Content the Ads are prohibited from appearing near.

3.21     “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.

3.22     “Impressions” means the number of times an Advertisement has been delivered to Users through the Marketplace Inventory or Direct Inventory, as applicable.

3.23    “Integrate” or “Integration” means the installation and configuration of Code within the servers and Digital Properties to enable the delivery of the Services. 

3.24    “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.

3.25     “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.

3.26    “Marketplace Inventory” means Ad spaces within a Digital Property designated by Customer as being available for sale by SoundStack through the Platform and into which Advertisements may be served.

3.27     “Order” means any order for Services.

3.28    “Personal Information” means any information about an individual whose disclosure is protected or otherwise regulated by any Privacy Law.

3.29    “Platform” means SoundStack’s proprietary audio-as-a-service (AaaS) platform through which it provides the Services.

3.30    “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 Documentation; or (viii) contains Malicious Code.

3.31     “Services” means the services ordered by Customer and provided by SoundStack pursuant to, and in accordance with, the Order.

3.32    “SoundStack-Observed Holidays” means New Year’s Day, Martin Luther King, Jr. Day, President’s Day, Memorial Day, Juneteenth National Independence Day, Independence Day, Labor Day, Thanksgiving Day, day after Thanksgiving, Christmas Day, and New Year’s Eve.

3.33    “Taxes” means any federal, provincial, or local sales, PST, GST, HST, VAT, foreign withholding, use, property, excise, service, or similar transaction taxes.

3.34    “Term” means the Initial Term and any subsequent Renewal Terms, each as defined and set forth in the Order.

3.35    “Third-Party Inventory” means Ad spaces within a Third-Party Property designated by Customer for Ad insertion through a programmatic connection or direct Ads.

3.36    “Third-Party 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 a third party with which SoundStack makes an Integration as instructed by Customer.

3.37     “User” means an end user of a Digital Property or Third-Party Property.

4.        USE OF THE PLATFORM.    

4.1         Access to Platform.  During the Term, to the extent necessary for SoundStack to perform the Services: (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.  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. 

4.2        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 Documentation, at Customer’s own expense.

4.3        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 the 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 the Agreement, the Documentation, 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; or (viii) introduce into the Digital Properties, the Content, the Advertisements, or the Platform any Prohibited Content or Malicious Code.

4.4        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 the 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 Features at its own risk.

4.5        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 the Agreement is not contingent on the delivery of any future functionalities or features or any other future commitments.

4.6        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 the 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.

4.7        Cooperation.  Customer acknowledges that SoundStack’s ability to provide the Services is dependent on its having access to (and being able to interact in a timely manner 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 that SoundStack reasonably believes to be genuine, valid, and authorized. 

5.         ACCESS AND SUPPORT.

5.1         Access.  SoundStack shall make the Platform accessible to Authorized Users in accordance with the Documentation and the Agreement. 

5.2        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.

6.        FEES AND PAYMENT.

6.1         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.

6.2        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 thirty (30) days from Customer’s receipt of the invoice.  Invoices for Services are issued on the first day of each calendar month.  If the monthly billing start date set forth on the Order does not fall on the first of the month, Customer shall be charged a prorated amount on the first and final invoices.  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 elects to pay via credit card, Customer hereby authorizes SoundStack to charge Customer’s credit card the associated Fees, any applicable Taxes, and any credit card processing fees.  Customer further authorizes 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. 

6.3        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 the Agreement in accordance with, and pursuant to, Section 10.2.

6.4        Non-Refundable.  Unless otherwise expressly provided for in the Order, all Fees paid under the Agreement are non-refundable.

6.5        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.

7.         CONFIDENTIALITY; FEEDBACK.

7.1         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 the 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 the 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 ensure that confidential treatment will be afforded such disclosed portion of the Confidential Information.

7.2        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.

8.        PRIVACY; DATA.

8.1         General. SoundStack shall process Personal Information of Users in accordance with the Agreement, its then-current privacy notice maintained at https://soundstack.com/privacy (the “Privacy Notice”), and the Data Processing Addendum maintained at https://soundstack.com/data-processing-addendum (the “DPA”), which are hereby incorporated by reference and shall control in the event of any conflict with the Agreement with respect to the processing of Personal Information.

9.        INTELLECTUAL PROPERTY; TRADEMARK LICENSE. 

9.1         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 the 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 the Agreement.

9.2        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.

10.      SUSPENSION AND TERMINATION.

10.1      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.

10.2     Termination.

(a)       In the event of a material breach of the Agreement by a party, the other party may terminate the Agreement by giving thirty (30) days prior, written notice to the breaching party; provided, however, that the 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.

(b)       The Agreement is terminable immediately on written notice by a party if the other party commits a material breach of the 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.

(c)       Each party may terminate the Agreement as set forth in the Order.

(d)       SoundStack may terminate the Agreement upon written notice under the limited circumstances set forth in Section 12.3.

(e)       Customer may terminate the Agreement upon written notice under the limited circumstances set forth in Section 14.6.

10.3     Effect of Termination.  In the event of any termination or expiration of the Agreement: (i) each party shall promptly pay the other party for all amounts due and 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 (v) 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.

10.4     Survival.  Sections 2, 3, 4.6, 6 (until all monies due and payable hereunder are paid), 7, 8, 9, 10.3, 11.4, 12, 13, and 14 shall survive any expiration or termination of the Agreement.

11.       REPRESENTATIONS AND WARRANTIES; DISCLAIMER.

11.1       Mutual Representations and Warranties.  Each party represents and warrants that: (i) the Agreement constitutes its valid and binding obligation and is enforceable against it in accordance with the terms of the Agreement; and (ii) the execution and delivery of the 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. 

11.2      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.

11.3      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.  

11.4      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 (INCLUDING ANY REPORTS OF USE), 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 THE 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.

12.      INDEMNIFICATION.

12.1      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 the Agreement infringes, violates, or misappropriates any third-party Intellectual Property Rights.

12.2      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 third-party services engaged independently by Customer and not provided by SoundStack; (ii) use of the Platform in a manner that breaches the Agreement or any Applicable Law; or (iii) the alteration or modification of the Platform by a party other than SoundStack.

12.3     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 the 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.

12.4     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 the 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; defames a third party; or violates any Applicable Law.

12.5     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). 

13.      LIMITATION OF LIABILITY. 

13.1      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 THE 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. 

13.2     Limitation of Damages.  SUBJECT TO SECTION 13.3, EACH PARTY'S MAXIMUM LIABILITY ARISING OUT OF OR RELATING TO THE 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 THE AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM ARISES.

13.3     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.

14.      GENERAL.

14.1      Notices.  Unless otherwise specified herein, all notices and other communications between the parties (other than routine operational communications) required or permitted by the 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.

14.2     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.

14.3     Assignment.  Neither party may assign or otherwise transfer any of its rights or obligations under the 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 the 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, the Agreement shall be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns. 

14.4     Force Majeure.  Neither party shall be liable for any failure or delay in the performance of its obligations under the 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 the Agreement upon written notice to the other party.     

14.5     Governing Law, Venue.  The validity, interpretation, and performance of the 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 the 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 the 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.

14.6     Modification.  Any modification to the 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 General Terms 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 the 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 the Agreement pursuant to this Section 14.6.  

14.7     No Waiver.  The rights and remedies of the parties to the 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 the 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. 

14.8     Severability.  If any provision of the Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of the 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.