Archived 3Play Media Master Services Agreement – January 13, 2022

! This is an archived version of our Master Services Agreement. You can see the current version here.

Last Modified: January 13, 2022

This 3Play Media Master Services Agreement (the “Agreement”) is a legally binding agreement between you (a single natural or legal person, hereinafter referred to by the term (“Customer” or “You”) and 3Play Media, Inc. (“3Play Media”) with regard to Your use of the Services as further described below.

IMPORTANT – PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE SERVICES. BY REQUESTING, ACCESSING OR USING THE SERVICES IN ANY FORM OR MEDIA, CUSTOMER CONFIRMS THAT CUSTOMER HAS READ AND UNDERSTANDS THIS AGREEMENT AND THAT CUSTOMER AGREES TO BE BOUND BY THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE OR DOES NOT WISH TO BECOME A PARTY TO THIS AGREEMENT, CUSTOMER SHOULD NOT REQUEST, ACCESS OR USE THE SERVICES. CUSTOMER CONFIRMS THAT IT UNDERSTANDS THIS AGREEMENT AND AGREES TO BE BOUND BY THIS AGREEMENT BY EXECUTING AN ORDER FORM REFERENCING THIS AGREEMENT OR BY SUBMITTING SOURCE MATERIALS (DEFINED BELOW) AND ORDERING SERVICES VIA THE 3PLAY MEDIA PORTAL. ANY ORDER FORM OR ONLINE ORDERING DOCUMENT, WEBPAGE, OR ANY SOURCE MATERIALS SUBMISSION PAGE IN THE PORTAL SHALL BE REFERRED TO HEREIN AS AN “ORDER FORM”.

IF CUSTOMER IS ENTERING INTO THIS AGREEMENT ON BEHALF OF (AND FOR USE ON BEHALF OF) A COMPANY, GOVERNMENTAL ENTITY OR OTHER ENTITY (AN “ENTITY“), CUSTOMER REPRESENTS THAT IT HAS THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT. THE TERM “CUSTOMER” REFERENCED HEREIN REFERS TO: (1) THE ENTITY, ITS OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES OR (2) YOU, AS AN INDIVIDUAL, IN THE CASE OF A NON-LEGAL ENTITY.

THE “EFFECTIVE DATE” FOR THIS AGREEMENT IS THE EARLIER OF THE FIRST DATE OF ANY APPLICABLE ORDER FORM OR THE FIRST DAY CUSTOMER REQUESTS, USES OR ACCESSES THE SERVICES. EACH ORDER FORM MAY NOT BE CANCELLED ONCE THIS AGREEMENT HAS BEEN ACCEPTED, AND NO REFUNDS WILL BE GRANTED. CUSTOMER ACKNOWLEDGES AND AGREES THAT THIS AGREEMENT (AS IT MAY BE UPDATED FROM TIME TO TIME BY 3PLAY MEDIA IN ACCORDANCE WITH THIS AGREEMENT) SHALL BE VALID FOR ANY FUTURE ORDER FORM, ACCESS TO OR USE OF THE SERVICES OR SUBMISSION OF SOURCE MATERIALS MADE BY CUSTOMER, WHETHER OR NOT THIS AGREEMENT IS EXPRESSLY REFERENCED IN SUCH ORDER FORM OR SUBMISSION, PROVIDED THAT THE PARTIES HAVE NOT MUTUALLY AGREED ON ALTERNATIVE TERMS AND CONDITIONS IN A SIGNED WRITING. Notwithstanding the foregoing, any terms or conditions appearing on the face or reverse side of any purchase order, purchase order acknowledgment or other order document submitted by Customer that are different from, or in addition to, the terms of this Agreement will not be binding on 3Play Media, even if payment is accepted, and 3Play Media does not agree to be bound by such terms.

Date last modified: January 13, 2022.

You can find archived versions of the 3Play Media Master Services Agreement Online Form here.

Only if applicable to You, this Agreement also includes:

Appendix A: Supplemental Terms

Appendix B: Public Entity Terms

1. DEFINITIONS

“API” means 3Play Media’s application programming interface which Customer may elect to use to integrate the 3Play Media Portal with certain of Customer’s or a third party’s applications, products and services.

“3Play Media Portal” means 3Play Media’s online account system and associated tools, applications and features.

“Captioners” means the individuals who perform captioning, transcription, description and other related services on behalf of 3Play Media. Captioners are independent contractors and not employees of 3Play Media.

“Deliverables” means any transcript, caption, or other output files created using the Source Materials in the performance of the Services and delivered to Customer by 3Play Media.

“Order” means a 3Play Media-approved order form, SOW, quote, or online ordering process (which may occur via the 3Play Media Portal).

“Personnel” means 3Play Media employees and Captioners.

“Services” means captioning, transcription, audio description and other related services.

“Source Materials” means all videos, content, files, data and other materials provided by Customer to 3Play Media for use in connection with the Services, that are submitted via the 3Play Media Portal or otherwise provided to 3Play Media. Unless expressly set forth on Customer’s Order or in a separate agreement between the parties, Source Materials shall not contain any information that is regulated by: (i) Family Educational Rights and Privacy Act of 1974 (“FERPA”), (ii) the Health Insurance Portability and Accountability Act of 1996 (as amended, and together with any regulations promulgated thereunder, including without limitation the Health Insurance Reform: Security Standards (Security Rule)); (iii) the Health Information Technology for Economic and Clinical Health Act, enacted as part of the American Recovery and Reinvestment Act of 2009 (as amended); or (iv) Gramm–Leach–Bliley Act, also known as the Financial Services Modernization Act of 1999 (together with any regulations promulgated thereunder).

“Vendors” means 3Play Media’s hosting service provider and software vendors who provide platforms, software, services, tools and applications that 3Play Media uses in order to provide the 3Play Media Portal and the Services.

2. SERVICES

Subject to Customer’s compliance with this Agreement, 3Play Media will provide Customer with the Services pursuant to this Agreement and the applicable Order. During the term of this Agreement, 3Play Media will provide Customer access to use the 3Play Media Portal to submit Source Materials in order for 3Play Media to provide the Customer with the Services. 3Play Media’s Turnaround Service Level Agreement describes the duration upload limits, deadlines and turnaround times, and 3Play Media’s Quality and Accuracy Service Level Agreement described quality threshold and accuracy standards: http://www.3playmedia.com/sla/ (together, the “SLAs”).

3. ORDERS, TERM

Unless otherwise set forth on the applicable Order, Customer may submit Source Materials on a rolling or ongoing basis until this Agreement or the applicable Order is terminated. The term of this Agreement shall continue for as long as Customer is receiving Services, unless otherwise terminated pursuant to these Agreement. CUSTOMER ACKNOWLEDGES AND AGREES THAT THIS AGREEMENT SHALL BE VALID FOR ANY FUTURE ORDER, ACCESS TO OR USE OF THE PORTAL, API AND/OR SERVICES AND/OR SUBMISSION OF SOURCE MATERIALS MADE BY CUSTOMER, WHETHER OR NOT THIS AGREEMENT IS EXPRESSLY REFERENCED IN SUCH ORDER OR SUBMISSION, UNLESS THE PARTIES HAVE MUTUALLY AGREED ON WRITTEN ALTERNATIVE TERMS AND CONDITIONS FOR SUCH ORDER.

4. SOURCE MATERIALS

Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, intellectual property ownership and right to use of all Source Materials, and the means by which Customer acquires, uses and submits the Source Materials, including compliance with any regulations and laws applicable to the Source Materials (including, without limitation any laws related to data privacy, export control, and transfer of data to and from the United States). Customer warrants that it is the owner of (or otherwise has full legal authority to submit) the Source Materials to 3Play Media for the purposes of 3Play Media’s performance of the Services. Customer is responsible for providing all notices and obtaining all licenses, rights and consents that may be required in order to allow 3Play Media to process and use Source Materials as described in this Agreement. Customer will not submit Source Materials that violate any applicable law or regulation. Customer agrees that 3Play Media is receiving only a copy of the Source Materials provided by Customer, and as a result 3Play Media is not responsible or liable for any loss of, or damage to, or destruction of any Source Materials, including without limitation, those that may occur in shipping or transmission electronically.

All Source Materials are subject to 3Play Media’s acceptance. 3Play Media has the right to reject any Source Material for any legitimate reason, including without limitation that it is considered to be of such poor quality that: (1) transcription is not possible, or (2) the project is beyond 3Play Media’s resources. If, in 3Play Media’s reasonable opinion, the audio quality appears to be too difficult to transcribe or of poor quality, this may result in increased fees.

Customer retains ownership of all right, title and interest in and to all Source Materials. Customer grants 3Play Media permission to use the Source Materials and Deliverables as required for 3Play Media and its Personnel (and Vendors who are acting solely on 3Play Media’s behalf) to provide use of the 3Play Media Portal, the API, the Services and the Deliverables to Customer.

Customer will indemnify, defend and hold 3Play Media harmless from and against any and all Losses incurred arising out of or in connection with a claim, suit, action, or proceeding brought by a third party against 3Play Media arising out of the Source Materials or Customer’s use of the 3Play Media Materials in breach of the terms of this Agreement.

5. INTELLECTUAL PROPERTY

All Deliverables shall be the sole property of Customer upon Customer’s payment in full of all associated fees due hereunder. Any copyrightable work in the Deliverables shall be a “work made for hire”. Notwithstanding anything to the contrary in this Agreement, Customer grants 3Play Media a non-exclusive, worldwide, and royalty-free right to run the Source Materials and Deliverables through speech recognition software (in their original form but with an anonymized file name) in order to provide the Services and to improve the performance of the Services generally. For the avoidance of doubt, Customer acknowledges that once the files have been run through the speech recognition software the software algorithms use the resulting speech to text to teach and improve the Services (such improvements, “Machine Learning”), any such Machine Learning cannot be “unlearned”. For clarity, 3Play Media is not permitted to use any concepts contained in the Source Materials or Deliverables for its own purposes.

Customer acknowledges and agrees that both during the term of this Agreement and thereafter, 3Play Media may collect, analyze, copy, display and use Aggregated Data for the purpose of providing, operating, analyzing, and improving the 3Play Media Materials and other 3Play Media products and services. 3Play Media will not disclose any Aggregated Data unless it is in aggregated and anonymized form that would not permit a third party to identify the data as associated with Customer. “Aggregated Data” means anonymized or aggregated data, statistics, and analysis derived from Customer’s use of the Services, the API and the 3Play Media Portal, and from the Source Materials and Deliverables. For the avoidance of doubt, Aggregated Data does not include the content of any Source Materials, but may include information about the size of the file, file type, etc.

Customer acknowledges and agrees that as between 3Play Media and Customer, all right, title and interest in and to the Services, the API, the 3Play Media Portal and Pre-Existing Materials, and in each case, all derivatives and copies thereof (including any and all patents, copyrights, utility models, industrial designs/design patents, trade secret rights, registered and/or unregistered trademarks, trade names and other proprietary and/or industrial rights embodied therein or associated therewith) (collectively, the “3Play Media Materials”) are and shall remain 3Play Media’s or its licensors’. All rights not expressly granted to Customer in this Agreement are reserved by 3Play Media and its licensors.

“Pre-Existing Materials” means any software, information, documentation, templates, frameworks, tools, methodologies, data, designs, concepts, ideas, techniques, processes, know-how, technology, algorithms, and plug-ins, owned or licensed by 3Play Media prior to the commencement or independent of the Services and all intellectual property rights therein, some of which may be included in the Services or the development of the Deliverables hereunder, and shall also include any enhancements made by 3Play Media to the 3Play Media Materials while performing the Services hereunder. Only if and to the extent any Pre-Existing Material is incorporated into any Deliverable, 3Play Media hereby grants to Customer a non-exclusive, worldwide, royalty free, fully paid-up license to use such Pre-Existing Material solely for Customer’s lawful use, distribution and exploitation of the Deliverables and not separate therefrom.

3Play Media welcomes ideas, suggestions, and feedback related to the 3Play Media Materials or Customer’s use thereof (collectively, “Feedback”). All Feedback is provided completely voluntarily, and 3Play Media may use and incorporate any Feedback that Customer provides to 3Play Media into the Services and/or the 3Play Media Materials without restriction. Feedback is not confidential. 3Play Media is under no obligation (1) to pay compensation or provide attribution for any Feedback; or (2) to respond to any Feedback.

Customer shall not (and shall not authorize any third party to): (i) modify, alter, adapt, translate, decompile, disassemble or reverse engineer the 3Play Media Materials; (ii) attempt to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques or algorithms of the 3Play Media Materials or any portion thereof; (iii) sell, loan, lease, transfer, license, sublicense, copy, market, distribute or the 3Play Media Materials; (iv) use the 3Play Media Materials for the purposes of creating a competitive product or service, or to copy any ideas, features, functions or graphics of the 3Play Media Materials; or (v) use the 3Play Media Materials for any timesharing, service bureau, subscription, rental or other computer based services to third parties. Customer shall take reasonable precautions to prevent unauthorized or improper use or disclosure of the 3Play Media Materials. Customer shall not remove, alter or obscure any trademark, proprietary label or notice accompanying or incorporated in the 3Play Media Materials.

6. FEES; PAYMENT TERMS

Customer agrees to pay 3Play Media for the Services on the basis and at the rates specified in the applicable Order, or if no rate is stated then at 3Play Media’s then-current rates. All fees are in United States dollars. 3Play Media may increase standard rates and fees at any time (but not more than once annually) upon at least thirty (30) days prior written notice to Customer, provided that such rate increases do not apply to rates that are specified in an Order as being valid for a period of time. Except as expressly set forth in this Agreement, there are no refunds.

Customer may elect to pre-pay for the Services (hereinafter and in any Order referred to as “Prepaid Services” or “Prepay Commitment”) as identified on the applicable Order. This Prepay Commitment is used as a credit against which Customer orders the Services as further described in the applicable Order. If Customer has ordered Prepaid Services, Customer acknowledges that the discounted rate offered for the Prepaid Services is provided in consideration of Customer’s promise to use the Prepaid Services in full, within two (2) years (“Balance Term”). Rates for such Prepaid Services ordered under the applicable Order shall not increase during the Balance Term. Except as otherwise expressly set forth in this Agreement, all fees for Prepaid Services are nonrefundable once ordered.

Customer may elect to pay for Services as they are performed (“Pay As You Go”) as identified on the applicable Order. If Customer has ordered Pay As You Go Services, Customer shall pay for all Services performed on a monthly basis, in arrears.

Unless otherwise set forth on the applicable Order, payment shall be due within thirty (30) days after the date of 3Play Media’s invoice (which shall be emailed to Customer on the applicable invoice date) and shall be made in US Dollars. If Customer fails to pay 3Play Media’s charges (other than charges disputed in good faith) within sixty (60) days after the applicable due date of the invoice, 3Play Media may suspend the provision of Services, access to the 3Play Media Portal, and transfer of Deliverables. For clarity, 3Play Media will not initiate suspension while Customer is disputing charges reasonably and in good-faith and is cooperating diligently in resolving the dispute.

Fees are exclusive of taxes. Customer shall be responsible for the payment of all sales, use and similar taxes arising from or relating to the Services rendered hereunder, except for taxes related to the net income of 3Play Media and any taxes or obligations imposed upon 3Play Media under federal, state and local wage laws.

7. CONFIDENTIALITY AND PERSONAL DATA

During the term of this Agreement, each party will regard as confidential any information that is: (a) provided to it by the other party and designated in writing as proprietary or confidential, or (b) to be reasonably considered confidential given the nature of the information or the circumstances under which it was disclosed (“Confidential Information”). The Source Materials are Customer’s Confidential Information. The 3Play Media Materials are 3Play Media’s Confidential Information. The receiving party shall hold in confidence, and shall not disclose any Confidential Information to any person or entity except to a director, officer, employee, Captioner, Vendor, outside consultant, or advisor (collectively “Representatives”) who have a need to know such Confidential Information in the course of the performance of their duties for the receiving party and who are bound by a duty of confidentiality no less protective of the disclosing party’s Confidential Information than this Agreement. Each party accepts responsibility for the actions of its Representatives and shall protect the other party’s Confidential Information in the same manner as it protects its own valuable confidential information, but in no event shall less than reasonable care be used.

Information will not be deemed Confidential Information hereunder if such information: (i) is known prior to receipt from the disclosing party, without any obligation of confidentiality; (ii) becomes known to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise publicly available, except through a breach of this Agreement; or (iv) is independently developed by the receiving party without use of the disclosing party’s Confidential Information. The receiving party may disclose Confidential Information pursuant to the requirements of applicable law, legal process or government regulation, provided that it gives the disclosing party reasonable prior written notice to permit the disclosing party to contest such disclosure, and such disclosure is otherwise limited to the required disclosure.

The terms of the Data Processing Addendum, located on 3Play Media’s website at https://www.3playmedia.com/account-terms/dpa/ (the “DPA”), shall apply, and such DPA is hereby incorporated into this Agreement in its entirety.

8. LOGIN CREDENTIALS

In order to use the 3Play Media Portal, Customer is required to establish a login identifier and a password (“Credentials”). Customer is responsible for all activity associated with its Credentials. Customer is responsible for keeping its Credentials secure. Unless otherwise expressly set forth in the Order, Customer may order the Services for its own benefit only, and may not order Services on behalf of any third party.

9. API

From time to time 3Play Media may provide access to its API, and may provide the non-exclusive, non-transferrable right to access its API for the purpose of integrating the 3Play Media Portal with certain of Customer’s or a third party’s products, services or applications in order to facilitate transfer of the Source Materials and Deliverables. 3Play Media expressly reserves the right to limit the number and/or frequency of API requests in its sole discretion. If Customer’s use of the API significantly exceeds that of the average user (in the 3Play Media’s sole opinion), then the 3Play Media may throttle Customer’s use of the API. If Customer’s use is excessive to the point that it could damage, disable, overburden, or impair the API, the 3Play Media Portal or the Services or interfere with any other party’s use and enjoyment of the same, then 3Play Media may immediately disable Customer’s use of the API. Customer acknowledges that use of the API depends on third party network and Internet providers and third party products, services and applications that are outside of 3Play Media’s control, and as a result 3Play Media will not be responsible or liable for performance or non-performance as a result of any such third parties.

10. THIRD PARTY SITES

The 3Play Media Portal and the API may provide Customer with the ability to connect to third-party websites and applications to access its Source Materials. Such access is provided for convenience only. Interactions with such third parties and their websites will be governed by the third parties’ own terms of service and not this Agreement. 3Play Media does not warrant or control any third party website, or the availability of any third party website.

11. ACCEPTANCE

Upon receipt by Customer of the Deliverable, Customer shall promptly review and inspect the Deliverable. If Customer reasonably believes any Deliverable fails to comply with the applicable Accuracy Levels set forth in the SLAs, Customer has thirty (30) calendar days upon receipt of the Deliverable (the “Notification Period”) to notify 3Play Media so that 3Play Media may examine the discrepancy. If 3Play Media agrees with Customer’s determination, 3Play Media shall, at its option, either (a) correct the deficiencies leading to such failure and re-deliver such Deliverable no later than thirty (30) days following its receipt of written notice of such non-compliance from Customer, or (b) provide Customer with a refund of fees actually paid with respect to such non-conforming Deliverable. The foregoing remedy shall be 3Play Media’s sole and exclusive liability and shall be Customer’s sole and exclusive remedy for any failure to meet the Accuracy Levels. If Customer does not notify 3Play Media of the failure of any Deliverable to comply with the applicable Accuracy Levels during the Notification Period, such Deliverable shall be deemed accepted.

12. REPRESENTATIONS

Neither party will knowingly input or upload into the Services, the 3Play Media Portal, the API, the Source Materials or the Deliverables any virus or other form of malicious code. Each party agrees that it shall comply with all applicable United States federal and state laws and regulations with respect to the performance of its obligations hereunder. The captions set forth in the caption files and the audio descriptions (each of which may be ordered as part of the Deliverables hereunder, and are provided by 3Play Media only if so ordered) shall be provided in accordance with the Americans with Disabilities Act (“ADA”), the quality standards established by the Federal Communications Commission (“FCC”) for accuracy, synchronicity, completeness, and placement as set forth in the FCC’s rules at 47 C.F.R. § 79.1(j)(2), the requirements for closed captioning of online video that previously appeared on television, as set forth by Title 2 of the 21st Century Communications and Video Accessibility Act for Video Programming (“CVAA”), the standards established in Section 508 of the Rehabilitation Act 29 U.S.C. § 794d and § 1194.24 and with the Information and Communication Technology Final Standards and Guidelines included in the Section 508 ICT Refresh set forth at 36 C.F.R. Parts 1193 and 1194, the standards and techniques set forth in WCAG 2.1 and 2.0 Success Criterion 1.2.2 (WCAG 2.0 standards are included in the Section 508 ICT). Customer will comply with all applicable laws related to audio and video recordings. Each party shall comply with all applicable export control laws of the United States. Unless provided for in a separate agreement, the parties shall not disclose any information (including Source Materials) requiring an authorization to be exported unless the authorization is required solely for export to countries subject to trade sanctions.

13. WARRANTY AND DISCLAIMER

Each party represents and warrants that it has the full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms. 3Play Media warrants that the Services will be provided in a professional manner. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE WARRANTIES SET FORTH IN THIS SECTION 13 ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY 3PLAY MEDIA AND 3PLAY MEDIA EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY. 3PLAY MEDIA DOES NOT WARRANT THAT THE 3PLAY MEDIA MATERIALS WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE 3PLAY MEDIA MATERIALS WILL BE UNINTERRUPTED OR ERROR-FREE.

14. LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, 3PLAY MEDIA will NOT be liable to CUSTOMER OR ANY THIRD PARTY for special, indirect, incidental, consequential or exemplary damages, including without limitation loss of profits and costs, loss of business, loss of savings, loss of Source Materials or data, or loss of goodwill, in connection with the performance of the Services, THE 3PLAY MEDIA MATERIALS, or the performance of any other obligations under this Agreement, even if it is aware of the possibility of the occurrence of such damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, The total cumulative liability of 3Play Media to Customer for any and all claims and damages under this Agreement, whether arising by statute, contract, tort or otherwise, will not exceed TWO TIMES (2X) the Services fees paid by Customer to 3Play Media under the Order for the Services which form the subject of the claim during the six (6) month period immediately preceding the event giving rise to the claim.

The provisions of this Agreement fairly allocate the risks between 3Play Media, on the one hand, and Customer on the other. Customer acknowledges and agrees that the pricing reflects this allocation of risk and the limitation of liability specified herein, and that 3Play Media would not enter into this Agreement without such allocation and limitation. Except for actions of non-payment, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than two (2) years after the cause of action has accrued.

IF YOUR JURISDICTION DOES NOT ALLOW THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION, THE LIABILITY OF 3PLAY MEDIA SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

15. TERMINATION, SUSPENSION

Customer may choose to terminate any Order at its convenience upon at least thirty (30) days prior written notice to 3Play Media, provided that 3Play Media will not provide refunds of any prepaid or unused fees, and Customer will promptly pay all unpaid fees associated with any Prepaid Services and any completed Services. Either party may terminate this Agreement at any time upon thirty (30) days prior written notice if there are no active Orders.

Either party may terminate an Order and this Agreement: (i) immediately in the event of a material breach of this Agreement or the applicable Order by the other party that is not cured within thirty (30) days of written notice thereof from the other party, or (ii) immediately if the other party ceases doing business or is the subject of a voluntary or involuntary bankruptcy, insolvency or similar proceeding, that is not dismissed within sixty (60) days of filing. If Customer terminates this Agreement for cause, 3Play Media shall promptly refund any prepaid unused fees. If 3Play Media terminates this Agreement for cause, Customer shall promptly pay all fees that have accrued prior to the termination date, including all fees associated with Prepaid Services and any completed Services and shall not receive any refund of fees paid.

All rights and obligations of the parties which by their nature are reasonably intended to survive such termination or expiration will survive termination or expiration of this Agreement and each Order. Except as expressly provided herein, termination of this Agreement by either party will be a nonexclusive remedy for breach and will be without prejudice to any other right or remedy of such party.

Upon any termination or expiration of this Agreement or the applicable Order, 3Play Media shall no longer provide the applicable Services to Customer and Customer shall cease accessing the 3Play Media Portal and APIs.

If Customer makes a written request within thirty (30) days following the date of termination, provided that Customer has paid all undisputed fees owed hereunder, 3Play Media shall provide Customer with a temporary mechanism to retrieve Source Materials and Deliverables in accordance with established and reasonable system access procedures. After such period, 3Play Media will have no further obligation to store and/or make available Source Materials and Deliverables and may delete the same, unless it is legally prohibited from doing so. Furthermore, Customer may at any time during the term of this Agreement request that 3Play Media delete Customer’s Source Materials.

In addition to 3Play Media’s other remedies hereunder, 3Play Media reserves the right to suspend Customer’s right to access the 3Play Media Portal and the Services if Customer violates its obligations under this Agreement. To the extent feasible and taking into account the impact on security of the Services, 3Play Media shall use commercially reasonable efforts to notify Customer in advance of any such suspension, and shall restore such access once the violation has been remedied.

16. ASSIGNMENT

This Agreement shall be binding upon and for the benefit of 3Play Media, Customer and their permitted successors and assigns. 3Play Media may assign this Agreement and all Orders to any of its affiliates or as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets. Except as expressly stated in this Agreement, neither party may assign this Agreement either in whole or in part without the prior written consent of the other party, such consent shall not be unreasonably withheld. And any attempted assignment without such consent will be void.

17. CAPTIONERS AND VENDORS

Customer acknowledges that certain elements of the Services may be performed by Captioners, and that 3Play Media uses Vendors to provide certain functionality that may be contained within the 3Play Media Portal, the API and as part of the Services. Without limitation, certain captioning and transcription Services in languages other than English and Spanish, and certain translation services may be provided by third party Vendors. 3Play Media shall be responsible for the performance of any Captioners and Vendors under this Agreement. 3Play Media shall have sole discretion in staffing the Services with its Captioners, and Customer consents to the use of any such Captioners and Vendors.

18. GOVERNING LAW

This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, USA without regard to its conflict of law provisions. Any legal action or proceeding with respect to this Agreement shall be brought in the state or federal courts in Boston, Massachusetts. By execution and delivery of this Agreement, each of the parties hereto accepts for itself and in respect of its property, generally and unconditionally, the exclusive jurisdiction of the aforesaid courts. Each party knowingly, voluntarily, and intentionally waives (to the extent permitted by applicable law) any right the party may have to a trial by jury of any dispute arising under or relating to this Agreement.

19. PUBLICITY

Unless otherwise expressly set forth on the applicable Order, Customer grants 3Play Media the right to add Customer’s name and logo to 3Play Media’s customer list and to otherwise reference Customer as a 3Play Media customer.

20. INDEPENDENT CONTRACTOR

3Play Media and Customer are independent contractors, and nothing in this Agreement shall be construed as making them partners or creating the relationships of employer and employee or principal and agent between them, for any purpose whatsoever. Neither party shall make any contracts, warranties or representations or assume or create any obligations, express or implied, in the other party’s name or on its behalf.

21. FORCE MAJEURE

Nonperformance of either party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts or orders or restrictions, electrical, internet or telecommunication outage, failure of Vendors or suppliers, or any other reason where failure to perform is beyond the reasonable control of the non-performing party. If such non-performance extends for thirty (30) days or longer, either party may terminate this Agreement.

22. NOTICE

Customer agrees that 3Play Media may provide all notices to Customer via email or via the 3Play Media Portal. Unless otherwise expressly set forth on the applicable Order, any notice, approval, request, authorization, direction or other communication under this Agreement given by Customer must be in writing and shall be deemed to have been delivered and given for all purposes (i) on the delivery date if delivered personally to the party to whom the same is directed; (ii) one (1) business day after deposit with a nationally recognized overnight carrier, with written verification of receipt, or (iii) five (5) business days after the mailing date whether or not actually received, if sent by U.S. certified mail, postage and charges pre-paid or any other means of rapid mail delivery for which a receipt is available, to the address of the party set forth on the applicable Order. Either party may change its address by giving written notice of such change to the other party.

23. NO THIRD PARTY BENEFICIARIES

Nothing contained in this Agreement is intended or shall be construed to confer upon any person any rights, benefits or remedies of any kind or character whatsoever, or to create any obligation of a party to any such person.

24. MODIFICATIONS TO THE SERVICES

3Play Media may make modifications to the Services, the 3Play Media Portal, the APIs or particular components of any of the foregoing from time to time provided that such modifications do not materially degrade any functionality or features of the Services during the term of any applicable Order.

25. WAIVER AND SEVERABILITY

Performance of any obligation required by a party hereunder may be waived only by a written waiver signed by an authorized representative of the other party, which waiver shall be effective only with respect to the specific obligation described therein. The failure of either party to exercise any of its rights under this Agreement will not be deemed a waiver or forfeiture of such rights. The invalidity or unenforceability of one or more provisions of this Agreement will not affect the validity or enforceability of any of the other provisions hereof, and this Agreement will be construed in all respects as if such invalid or unenforceable provision(s) were omitted.

26. ENTIRE AGREEMENT

This Agreement, including all applicable Orders and the DPA, contains the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous proposals, understandings, representations, warranties, covenants, and any other communications (whether written or oral) between the parties relating thereto and is binding upon the parties and their permitted successors and assigns. 3Play Media may modify this Agreement by placing a prominent notice in the 3Play Media Portal. Such modifications shall be effective upon the sooner of (a) Customer’s next Order, or (b) 60 days from the date of posting. Any inconsistent or conflicting terms and conditions contained in any purchase order or other document issued by Customer shall be of no force or effect, even if the order and/or payment is accepted by 3Play Media. This Agreement shall be construed and interpreted fairly, in accordance with the plain meaning of its terms, and there shall be no presumption or inference against the party drafting this Agreement in construing or interpreting the provisions hereof.

The headings to the sections of this Agreement are for ease of reference only and shall not affect the interpretation or construction of this Agreement.

Any conflict between the terms and conditions set forth in this Agreement and any Order shall be resolved in favor of this Agreement, unless such Order expressly references the conflicting provision in this Agreement that it is intended to control and states that it is to control.

APPENDIX A

SUPPLEMENTAL TERMS

A.1 APPLICABLITY.

If You are a Prepaid Services Customer, and Your Prepay Commitment exceeds thirty thousand dollars, then these Supplemental Terms apply. If at any point your Prepay Commitment drops below thirty thousand dollars, then these Supplemental Terms no longer apply to You.

If You are a Pay As You Go Customer, and Your total invoiced amount in the previous twelve (12) month period exceeds thirty thousand dollars then these Supplemental Terms apply. If at any point, Your total invoiced amount in the previous twelve (12) month period drops below thirty thousand dollarsthen these Supplemental Terms no longer apply to You.

A.2 INDEMNIFICATION

3Play Media will indemnify, defend and hold Customer harmless from and against any and all costs, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys’ fees) (collectively, “Losses”) incurred arising out of or in connection with a claim, suit, action, or proceeding brought by a third party against Customer alleging that the use of the 3Play Media Materials as permitted hereunder infringes any United States patent, copyright or trademark, or constitutes a misappropriation of a trade secret of a third party. Excluded from the above indemnification obligations are claims to the extent arising from (a) use of the 3Play Media Materials in violation of this Agreement, (b) the Source Materials, (c) modifications to the 3Play Media Materials made other than by 3Play Media (where the claim would not have arisen but for such modification), (d) the combination, operation, or use of the 3Play Media Materials with software, applications or equipment not provided by 3Play Media, to the extent that Customer’s liability for such claim would have been avoided in the absence of such combination, operation, or use; or (e) compliance by 3Play Media with Customer’s custom requirements or specifications if and to the extent such compliance with Customer’s custom requirements or specifications resulted in the infringement. If the 3Play Media Materials are held to infringe, 3Play Media will, at its own expense, in its sole discretion: (a) procure a license that will protect Customer against such claim without cost to Customer; (b) replace the impacted 3Play Media Materials with non-infringing materials without material loss of functionality; or (c) if (a) and (b) are not commercially feasible, terminate this Agreement or the applicable Order and refund to the Customer any unused prepaid fees for the infringing Services. The rights and remedies granted Customer under this section state 3Play Media’s entire liability, and Customer’s exclusive remedy, with respect to any claim of infringement of the intellectual property rights of a third party.

With respect to any indemnification obligations of either party under this Agreement, the indemnified party shall (i) promptly notify the indemnifying party in writing of any claim, suit or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying party’s obligation except to the extent it is prejudiced thereby, and (ii) allow the indemnifying party to solely control the defense of any claim, suit or proceeding and all negotiations for settlement; provided that the indemnifying party shall not settle any claim without the indemnified party’s prior written consent (such consent not to be unreasonably withheld or delayed). The indemnified party shall also provide the indemnifying party with reasonable cooperation and assistance in defending such claim (at the indemnifying party’s cost).

A.3 INSURANCE

3Play Media shall maintain reasonably sufficient (as determined by 3Play Media) insurance coverage to enable it to meet its obligations and liabilities created by this Agreement. Such coverage shall include, at a minimum: Workers’ Compensation and Employer’s Liability Insurance of not less than $1,000,000 in accordance with and to the extent required by applicable law in the Commonwealth of Massachusetts; (ii) Commercial General Liability Insurance with a limit of not less than $1,000,000 per occurrence; and (iii) Professional Liability coverage with limits not less than $3,000,000 in the aggregate.

A.4 LIMITATION OF LIABILITY

Section 14 of the AGreement is hereby replaced with the following limitation of liability:

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, neither party will be liable to the other PARTY for special, indirect, incidental, consequential or exemplary damages, including without limitation loss of profits and costs, loss of business, loss of savings, loss of Source Materials or data, or loss of goodwill, in connection with the performance of the Services, THE 3PLAY MEDIA MATERIALS, or the performance of any other obligations under this Agreement, even if it is aware of the possibility of the occurrence of such damages. NOTWITHSTANDING THE FOREGOING, ALL AMOUNTS OF DAMAGES AWARDED AND ALL AMOUNTS AGREED TO IN A MONETARY SETTLEMENT OF THE CLAIMS PURSUANT TO A PARTY’S INDEMNIFICATION OBLIGATIONS, SHALL BE TREATED AS DIRECT DAMAGES REGARDLESS OF ANY CHARACTERIZATION BY THE COURT(S) OR IN THE SETTLEMENT AGREEMENT(S) THAT SUCH DAMAGES, OR PORTION(S) THEREOF, CONSTITUTE SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES.

EXCEPT FOR 3PLAY MEDIA’S INDEMNIFICATION OBLIGATIONS, BREACH OF CONFIDENTIALITY OBLIGATioNS, OR BREACH OF SECURITY OBLIGATIONS UNDER THIS AGREEMENT OR the DPA (COLLECTIVELY, “EXCLUDED CLAIMS”) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, The total cumulative liability of 3Play Media to Customer for any and all claims and damages under this Agreement, whether arising by statute, contract, tort or otherwise, will not exceed TWO TIMES (2X) the Services fees paid by Customer to 3Play Media under the Order for the Services which form the subject of the claim during the six (6) month period immediately preceding the event giving rise to the claim. NOTWITHSTANDING THE FOREGOING, 3PLAY MEDIA’S TOTAL AGGREGATE LIABILITY WITH RESPECT TO EXCLUDED CLAIMS SHALL BE LIMITED TO THE LESSER OF (A) FIVE (5X) TIMES the Services fees paid by Customer to 3Play Media under the Order for the Services which form the subject of the claim during the six (6) month period immediately preceding the event giving rise to the claim, OR (B) FIVE HUNDRED THOUSAND DOLLARS.

The LIMITATIONS SET FORTH ABOVE DO NOT APPLY TO EITHER PARTY’S FRAUD, WILLFUL MISCONDUCT, OR INTENTIONAL TORTS, OR TO ANY CLAIM THAT CANNOT BE LIMITED BY APPLICABLE LAW.

APPENDIX B

PUBLIC ENTITY TERMS

B.1 APPLICABLITY.

If You are a United States local, state or federal government entity, including, without limitation public institutions of higher education, these Public Entity Terms apply to You, provided that you are using the Services for a government-related purpose. This Appendix B does not apply in the event the Services are used for any personal or non-governmental-related purpose.

Please note that if you also meet the applicability requirements set forth in Appendix A, Appendix A shall also apply to you, provided that in the event of a conflict between the terms of this Appendix B and the terms of Appendix A, the terms of this Appendix B shall control.

In the event any terms in this Agreement are invalid or unenforceable against Customer because of applicable law, then those terms shall be applicable to the greatest extent permitted by applicable law, with invalid or unenforceable portion deemed excluded and instead construed in a manner most consistent with applicable governing law.

B.2 ORDERS, TERM.

Section 3 of the Agreement is not applicable and hereby deleted. The term of this Agreement is set forth in the applicable Order.

B.3 INDEMNIFICATION.

All of Customer’s indemnification obligations, including the last paragraph of Section 4 of the Agreement, are not applicable and hereby deleted.

This provision applies only if Appendix A is applicable: Notwithstanding anything to the contrary in section A.2, to the maximum extent permitted by applicable law, with advice and consent of the Attorney General of the relevant jurisdiction if and to the extent such advice and consent is required by applicable law, the indemnified party shall allow the indemnifying party to solely control the defense of any claim, suit or proceeding and all negotiations for settlement; provided that the indemnifying party shall not settle any claim without the indemnified party’s prior written consent (such consent not to be unreasonably withheld or delayed).

B.4 CONFIDENTIALITY

Notwithstanding Section 7 of the Agreement, 3Play Media understands and agrees that Customer is a governmental entity subject to open records and sunshine laws. To the extent required by applicable law, Customer may be required to disclose a copy of this Agreement, as well as other 3Play Media information and records related to this Agreement. The parties agree that Customer will not in breach of this Agreement if the Customer is required to disclose such information pursuant to applicable law. However, to the extent permitted by applicable law, Customer agrees that prior to disclosure of any 3Play Media information (whether Confidential Information or otherwise) under any public records request or obligation, Customer shall notify 3Play Media of such required disclosure, so that 3Play Media shall have an opportunity to note and/or redact any information that may be classified as an exemption to the applicable law.

B.5 LIMITATION OF LIABILITY

The second paragraph of Section 14 and the last paragraph of A.4 (only if Appendix A is applicable) do not apply and are hereby deleted. The limitations of liability set forth in the Agreement do not apply to any claim or damage for which liability cannot be excluded by applicable law. Any remedy that is listed as “sole and exclusive” shall be the sole and exclusive remedy only to the extent permitted by applicable law. The limitations of liability set forth in the Agreement shall apply without waiver of Customer’s sovereign immunity.

B.6 ASSIGNMENT

Section 16 shall be replaced with the following: This Agreement shall be binding upon and for the benefit of 3Play Media, Customer and their permitted successors and assigns. To the maximum extent permitted by applicable law, 3Play Media may assign this Agreement and all Orders as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets. If consent is required by applicable law to assign this Agreement, such consent shall not be unreasonably withheld. Except as expressly stated in this Agreement, to the maximum extent permitted by applicable law, neither party may assign this Agreement without the prior written consent of the other party, any attempted assignment will be void. Except for Captioners and Vendors, 3Play Media shall not subcontract the Services to any other third party without Customer’s prior written consent.

B.7 GOVERNING LAW

Section 18 shall be replaced with the following: This Agreement shall be governed by and construed in accordance with the laws of the state where Your primary office is located, in the United States of America, without regard to its conflict of law provisions. Any legal action or proceeding with respect to this Agreement shall be brought in the state or federal courts in the state where Your primary office is located, in the United States of America.

B.8 UNITED STATES GOVERNMENT USE

The following provision applies only if Customer is a branch or agency of the United States Government or is licensing the Services on behalf of the United States Government. The 3Play Media Materials are comprised of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 (SEPT 1995) and are provided to the Government for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212 (SEPT 1995); or for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 (JUN 1995) and 227.7202-3 (JUN 1995). Use, duplication, or disclosure of the 3Play Media Materials (including any associated documentation) by the United States Government is subject to the restrictions set forth in this Agreement and in subparagraph (c)(1) and (2) of the Commercial Computer Software-Restricted Rights Clause at FAR 52.227-19; subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013; subparagraph (d) of the Commercial Computer Software–Licensing clause at NASA FAR supplement 16-52.227-86; or their equivalent, in each case as applicable..