3Play Media Supplemental Terms Addendum
Last updated: January 25, 2023
This 3Play Media Supplemental Terms Addendum (the “Addendum”) forms part of the agreement (“Agreement”) executed between the entity identified in the Agreement (“Customer”) and 3Play Media, Inc. and its Affiliates (“3Play Media”) with regard to Customer’s use of the Services. “Affiliates” means any corporation, partnership or other entity now existing or hereafter organized that directly or indirectly controls, is controlled by or under common control with a party, where “control” means the direct possession of a majority of the outstanding voting securities of an entity. In the event of a conflict between the terms of this Addendum and the terms of the Agreement, the terms of this Addendum shall control.
1. SERVICES. 3Play Media will provide Customer with the services (“Services”) described in the applicable ordering document or online ordering process (“Order”). Except as set forth in the Order, Customer may order Services for its own benefit only, and not on behalf of any third party. Services are performed remotely or at 3Play Media’s or its Affiliates’ facilities and are not performed at Customer’s locations. Services may be performed outside of the United States. Certain elements of the Services may be performed by 3Play Media’s Affiliates and their Accessibility Service Professionals and Vendors, who may be operating as independent contractors. 3Play Media is responsible for the performance of any Affiliates, Accessibility Service Professionals, and Vendors under the Agreement. “Accessibility Service Professionals” means the individuals who perform captioning, transcription, editing, description and other related services on behalf of 3Play Media. “Vendors” means 3Play Media’s hosting service provider, translation service providers, and software vendors who provide platforms, software, services, tools and applications that 3Play Media and/or its Affiliates uses in order to provide the 3Play Media Portal and the Services. Acceptance criteria and Accuracy Levels for the Services are described in the SLA, available at: https://www.3playmedia.com/sla/.
During the term of the Agreement, 3Play Media will provide Customer access to 3Play Media’s online account system and associated tools, applications and features (“3Play Media Portal”), including the application programming interface (“API”) which Customer may use to integrate its or a third party’s applications, products and services. Customer may use the 3Play Media Portal to submit Source Materials (defined in Section 2 below), which 3Play Media and its Affiliates will use to provide the Customer with the Services. Customer is responsible for all activity associated with its login identifier and a password (“Credentials”) for the 3Play Media Portal, and for keeping its Credentials secure. The 3Play Media Portal may allow Customer to access its Source Materials through connections to third-party websites and applications. Such access is provided for convenience only. Interactions with third parties and their websites are governed by the third parties’ own terms of service and not the Agreement. 3Play Media disclaims all responsibility for third party websites, and their availability.
3Play Media may suspend Customer’s right to access the 3Play Media Portal and the Services if Customer violates its obligations under the Agreement or if 3Play Media determines in good faith that such suspension is necessary to comply with applicable law or to prevent significant harm to any other customer, provided that 3Play Media uses commercially reasonable efforts to suspend only that portion of the 3Play Media Portal or Services as is reasonably necessary to prevent the occurrence or continuation of the violation or harm. To the extent feasible and taking into account the impact on the security of the Services, 3Play Media will use commercially reasonable efforts to notify Customer in advance of any such suspension.
2. SOURCE MATERIALS AND DELIVERABLES. “Source Materials” means all videos, media, audio lines, video feed, content, files, data and other materials provided by Customer to 3Play Media or its Affiliates for use in connection with the Services. Customer retains ownership of all right, title and interest in and to all Source Materials. Unless permitted under the applicable Order, Customer must ensure that Source Materials do 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). Customer either owns fully and outright or otherwise possesses and has obtained all rights (including intellectual property rights), approvals, licenses, consents and permissions as are necessary to perform its obligations under the Agreement, exercise its rights under the Agreement, and allow 3Play Media to use the Source Materials under the Agreement; and Customer shall comply with all applicable laws and regulations, including those related to data privacy, export control, and transfer of data to and from the United States. Customer will not disclose any Source Materials or other information requiring an authorization to be exported unless the authorization is required solely for export to countries subject to trade sanctions.
3Play Media may reject Source Material for any legitimate reason, including that it considers the Source Material to be of such poor quality that transcription is impossible or would be overly burdensome on its resources. 3Play Media will notify Customer of such rejection via the 3Play Media Portal or email. Upon receipt of such notice, Customer may resubmit an alternate version of the impacted Source Material.
“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 or its Affiliates. All Deliverables are 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”.
Customer grants 3Play Media permission to use the Source Materials and Deliverables as required for 3Play Media and its Affiliates’ (and its and their employees, Accessibility Services Professionals and Vendors who are acting solely on 3Play Media’s or its Affiliates’ behalf) to provide use of the 3Play Media Portal, the Services and the Deliverables to Customer. Customer also 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. 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”.
Upon written request within 30 days following the date of termination, provided that Customer has paid all undisputed fees owed hereunder, 3Play Media will provide Customer with a temporary mechanism to retrieve stored Source Materials and Deliverables, if any. Retrieval of Source Materials and Deliverables is subject to 3Play Media’s system access procedures and document retention policies.
3. INTELLECTUAL PROPERTY OF 3PLAY MEDIA. All right, title and interest in and to the Services, 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 the sole property of 3Play Media’s (or, as applicable, its licensors). All rights not expressly granted to Customer in this Addendum 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 or its Affiliates 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 or its Affiliates to the 3Play Media Materials while performing the Services hereunder. 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.
Customer will not (and will 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 to create 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.
3Play Media welcomes ideas, suggestions, and feedback about the 3Play Media Materials (“Feedback”). 3Play Media may use and incorporate any Feedback that Customer provides to 3Play Media or its Affiliates into the Services and/or the 3Play Media Materials, without restriction. Feedback is not confidential. 3Play Media is under no obligation to (1) pay compensation or provide attribution for any Feedback; or (2) respond to any Feedback.
4. CONFIDENTIALITY; PERSONAL DATA. The receiving party may disclose the disclosing party’s Confidential Information to its Affiliates and its and their directors, officers, employees, Accessibility Service Professionals, Vendors, subcontractors, outside consultants, or advisors (“Representatives”) who (a) have a need to know such Confidential Information in the course of the performance of their duties for the receiving party and (b) are bound by a duty of confidentiality no less protective of the disclosing party’s Confidential Information than the Agreement. Each party accepts responsibility for the actions of its Representatives.
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 the Agreement in its entirety.
5. INDEMNIFICATION. Any obligation for 3Play Media to defend, indemnify, or hold harmless set forth in the Agreement (“Indemnification Obligations”) shall be limited to claims, suits, actions, or proceedings brought by a third party against Customer and resulting costs, liabilities, losses, and expenses (including reasonable attorneys’ fees). Excluded from the Indemnification Obligations are claims to the extent arising from (a) use of the 3Play Media Materials in violation of the 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), or (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. With respect to any indemnification obligations in the Agreement by either party, the indemnified party will 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 will not settle any claim without the indemnified party’s prior written consent (such consent not to be unreasonably withheld or delayed).
6. LIMITATIONS OF LIABILITY; DISCLAIMERS. To the maximum extent permitted by law, neither party or its Affiliates will be liable to the other party or its Affiliates for any (A) special, indirect, consequential, or exemplary damages (including loss of profits, loss of business, loss of savings, loss of Source Materials or data, or loss of goodwill) in connection with performance of any Services or obligations under the Agreement, even if it is aware of the possibility of such damages; or (B) cumulative damages in excess of the fees paid by the Customer to 3Play Media during the 12-month period immediately preceding the event giving rise to the claim. Notwithstanding the foregoing, with respect to a party’s indemnification obligations, breach of confidentiality obligations, or with respect to 3Play Media, breach the DPA that results in actual unauthorized disclosure of Customer Data, each party’s total aggregate liability will not exceed the lesser of (a) five times the fees paid by the Customer to 3Play Media during the 12-month period immediately preceding the event giving rise to the claim or (b) $500,000.00. The exclusions and 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 law. Except as expressly provided in the Agreement 3Play Media makes no representation or warranty of any kind to Customer, whether express, implied, or statutory.
7. ASSIGNMENT. 3Play Media may assign the 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.