General Terms and Conditions
By using 3Play Media Inc.’s (“3Play Media”, “our” and/or “we”) captioning, transcription, audio description or other related services (“Services”), or accessing 3Play Media’s account website (“Website” or “Work”) and any of its associated services, tools, applications, online account system, and features, you (or “Company” as labeled in the Service Order) are agreeing to these General Terms and Conditions (and if applicable, the Supplemental Terms and Conditions), which along with the Service Order and Exhibit A, collectively comprise the “Agreement.”
This Agreement commences as of the date of Company’s signature on the Service Order form (“Effective Date”) and shall continue until the second anniversary of the Effective Date, unless earlier terminated in accordance with this Agreement (the “Term”). In the event that Company continues to order Services from 3Play Media after the Term expires or upon termination of this Agreement, Company and 3Play Media agree that the terms of this Agreement shall continue to apply, except that 3Play Media shall charge Company for Services in accordance with Exhibit A.
2. Fees; Taxes
Company agrees to pay 3Play Media for any and all Services performed according to the prices listed in Exhibit A unless agreed to otherwise by 3Play Media. We do not provide refunds for any pre-paid amounts detailed in the Service Order if you decide to terminate this Agreement early (unless it is for cause) or if the Term expires. To the extent Company does not elect to pre-pay for Services, Company agrees to pay 3Play Media the amounts set forth in each invoice in full within thirty (30) days after the date of the invoice. Late payments shall accrue interest from the due date at the lesser of (i) one- and one-half percent (1.5%) per month or (ii) the maximum rate allowed by law. All applicable sales and use taxes and similar governmental charges shall be stated separately on 3Play Media’s invoice and shall be the responsibility of Company.
If Company chooses to pay 3Play Media by credit card, Company hereby authorizes 3Play Media or its third-party processor to charge Company’s credit card or bank account for all fees. Company further authorizes 3Play Media to use a third party to process payments, and consents to the disclosure of Company’s payment information to such third party.
3. Source Materials
All content, files, data and other materials provided by Company to 3Play Media on which to perform the Services (“Source Material(s)”) are subject to 3Play Media’s acceptance, which it may exercise in its sole and absolute discretion. 3Play Media has the right to reject, in its sole and absolute discretion, any Source Material for any reason whatsoever, 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 our opinion, the audio quality of any Source Material appears to be different than the quality represented by Company, 3Play Media will contact Company and discuss this discrepancy which may result in increased fees. If the parties are unable to agree on the appropriate rate, 3Play Media may decline to work on the project and, in such case, the Source Materials will be returned to Company and no Work will be performed by 3Play Media. Company agrees to not hold 3Play Media liable for any loss or damages to or destruction of any Source Materials, including those that may occur in shipping or transmission electronically. Company agrees that 3Play Media may hold any Source Materials or Deliverable (as defined below) until it receives payment in full from Company for any Work related to such Source Materials or Deliverables. We use industry standard methods to protect and secure the Company’s Source Material, source media files for transcription and/or captioning files and/or Confidential Information.
3Play Media and Company acknowledge that by reason of their relationship, either party may have access to certain information and materials in relation to the other party’s business, products, processes and procedures, services, clients, Source Materials, and marketing strategies that are confidential and of substantial value (“Confidential Information”). Confidential Information does not include any information that (i) was previously known to the receiving party free from any obligation to keep it confidential; (ii) is subsequently made public by the disclosing party; or (iii) is disclosed by a third party having a legal right make such a disclosure. 3Play Media and Company will not disclose to any third party such Confidential Information revealed to it unless and until required by court order or other legal process to do so or such information passes into the public domain. 3Play Media reserves the right to maintain and use output materials strictly for internal research and development. 3Play Media will store transcription and captioning output files in a secure environment. Company may at any time and upon termination of this Agreement, request that 3Play Media delete all of Company’s Confidential Information in 3Play Media’s possession and/or any outputs or transcripts as created by 3Play Media for Company.
5. Content Rights and ownership
Company warrants that it is the owner of (or otherwise has full legal authority to submit) the Source Materials to 3Play Media. Company will retain sole ownership and all rights to the Source Materials they submit to 3Play Media, as well as sole ownership and all rights to the transcript, caption, or other output files (“Deliverables”) created by 3Play Media. Company shall reimburse 3Play Media for any expenses reasonably incurred by 3Play Media (including reasonable attorneys’ fees) by reason of (i) 3Play Media’s compliance with the instructions of Company in the event of a dispute concerning the ownership, custody or disposition of the Source Materials, and (ii) any misrepresentation by Company. Public content included on the Website will not include the Company’s Source Material, source media files for transcription and/or captioning files and/or Confidential Information.
Upon receipt by Company of the Deliverable, Company shall promptly review and inspect the Deliverable. If Company reasonably believes any Deliverable fails to comply with acceptable accuracy levels, Company has thirty (30) calendar days upon receipt of the Deliverable to notify 3Play Media so that it can examine the discrepancy. If 3Play Media agrees with Company’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 Company, or (b) provide Company with a complete refund of all fees paid with respect to such Deliverable. Notwithstanding anything to the contrary in this Agreement, the foregoing remedy shall be 3Play Media’s sole and exclusive liability and shall be Client’s sole and exclusive remedy for any breach of acceptable transcript accuracy.
7. Intellectual Property
This Agreement does not convey to Company any ownership rights in any templates, frameworks, methodologies, processes, know-how, technologies, intellectual property, algorithms, plugins, account tools, and/or software (collectively, “3Play Media Materials”) used to provide the Services. 3Play Media shall retain all patent, copyright, trademark, trade secret, data and other intellectual property rights in the 3Play Media Materials. Notwithstanding anything to the contrary in this Agreement, such 3Play Media Materials shall not be Deliverables hereunder 3Play Media shall retain all right, title and interest, including all Intellectual Property Rights therein, in and to the 3Play Media Materials. Subject to the payment in full for the related Deliverables, 3Play Media hereby grants to Company a perpetual (subject to compliance with this Agreement), royalty-free, transferable, and nonexclusive limited license to use any 3Play Media Materials that are embedded into the Deliverables solely in conjunction with the use of such Deliverables and only so long as such 3Play Media Materials remain embedded in the Deliverables and are not modified or separated therefrom. Company agrees not to reverse engineer, decompile or otherwise attempt to extract the source code of any 3Play Media Material or any part thereof.
8. Website Availability; Website Security
- a. We maintain the Website as a service to clients who visit and use the site to learn more information about transcription, audio description or captioning services. We may alter, suspend, or discontinue our Website in whole or in part, at any time and for any reason, without notice. The Website may also periodically become unavailable due to maintenance or malfunction of computer equipment or for other reasons.
- b. When Company registers to use the Website or Services, Company acknowledges and agrees that it may be required to establish a login identifier and a password. Company is responsible for protecting its login and password from unauthorized use, and for all activity that occurs on its account. Company agrees to notify us immediately if it believes that its login or password has been used without its permission, so that appropriate action can be taken. We are not responsible for losses or damage caused by Company’s failure to safeguard its login and password.
9. DISCLAIMER OF WARRANTIES
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, 3PLAY MEDIA DOES NOT MAKE AND HEREBY DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES, TERMS AND CONDITIONS, EXPRESS OR IMPLIED, WHETHER BY LAW OR OTHERWISE, INCLUDING ANY WARRANTIES OR CONDITIONS (1) OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, SUITABILITY OR NON-INFRINGEMENT; (2) RELATING TO THIRD-PARTY PRODUCTS, SOFTWARE OR SERVICES; (3) RELATING TO THE PERFORMANCE OF ANY HARDWARE OR SOFTWARE OR 3PLAY MEDIA’S PERFORMANCE OF THE SERVICES; OR (4) REGARDING THE RESULTS TO BE OBTAINED FROM THE SERVICES. COMPANY IS ALSO ADVISED THAT 3PLAY MEDIA SOFTWARE IS PROVIDED “AS-IS” WITHOUT ANY WARRANTY OR CONDITIONS.
- a. Each party (the “Indemnifying Party”) agrees to indemnify and defend the other party (the “Indemnified Party”) and their officers, employees, directors, agents, affiliates, subsidiaries, successors and assigns from and against any and all third party claims, demand, cause of action or other proceeding, (each a “Claim”), resulting from (i) any alleged or actual breach of any representation, warranty or covenant made by the Indemnifying Party in this Agreement, (ii) any alleged or actual bodily injury (including death) or loss of or damage to any real or tangible property to extent caused by the tortious conduct of the Indemnifying Party.
- b. The indemnification obligations in this Section 9 are conditioned upon: (i) prompt written notice by the Indemnified Party to the Indemnifying Party of notice of the commencement of the Claim; (b) the opportunity to have reasonable control of the defense by the Indemnifying Party, with counsel reasonably acceptable to the Indemnified Party, and settlement thereof by the Indemnifying Party; and (c) such reasonable cooperation by the Indemnified Party in the defense as the Indemnifying Party may request, all provided, however, that failure to provide reasonable notice, control and/or cooperation shall not relieve the indemnification obligations hereof unless the Indemnifying Party can demonstrate material prejudice to the defense of a Claim caused thereby. Notwithstanding anything to the contrary contained herein, the Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or consent to the entry of any judgment with respect to any pending or threatened Claim unless the settlement, compromise or consent provides for and includes an express, unconditional release of such Claim against the Indemnified Party.
- c. The Indemnifying Party’s sole obligation hereunder shall be to pay to the Indemnified Party: (i) any judgment finally rendered; (ii) amounts payable pursuant to a settlement of a Claim; (iii) any monetary fine imposed by the applicable governmental authority; and (iv) reasonable legal costs and expenses incurred by the Indemnified Party.
11. Infringement Indemnification
- a. Subject to Section 10(b), 3Play Media shall defend and indemnify Company and its officers, directors and employees from and against any Claim, alleging that the Services infringe any United States patent or copyright of any third party or misappropriate any third party’s trade secrets. 3Play Media shall have no liability or obligation to defend Company to the extent that a Claim arises out of: (i) use of or access to the Services in or from an application or environment or on a platform or with devices not authorized in the applicable 3Play Media published documentation or other requirements specified under this Agreement, (ii) modifications, alterations, combinations or enhancements of the Services not created by 3Play Media or (iii) compliance with Company’s written specifications or direction, including the incorporation of any software or other materials requested by Company.
- b. If any Services are held, or in 3Play Media’s reasonable opinion could be held, to constitute an infringement or misappropriation of any third party’s intellectual property rights, 3Play Media may at its option and expense (a) use commercially reasonable efforts to procure the right for Company to continue using or accessing the Services, (b) replace the Services with a non-infringing equivalent service or (c) modify the Services to make them non-infringing and without substantially compromising their functionality. This paragraph states 3Play Media’s entire obligation to Company and Company’s sole and exclusive remedy with respect to any claims of infringement or misappropriation.
12. Limitation of Liability
- a. WAIVER OF CONSEQUENTIAL DAMAGES. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, WARRANTY OR OTHERWISE) FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING OUT OF OR CONNECTION WITH THE PERFORMANCE OR FAILURE OF PERFORMANCE OF ANY PROVISION OF THIS AGREEMENT (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES), SUCH AS, WITHOUT LIMITATION, LOSS OF REVENUE, INCOME, ANTICIPATED PROFITS, SAVINGS, LOST BUSINESS, OR LOSS OF GOODWILL OR REPUTATION.
- b. THE LIABILITY OF EACH PARTY TO THE OTHER PARTY FOR ANY AND ALL CAUSES OF ACTION, WHETHER IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY IN TORT) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, SHALL NOT EXCEED, IN THE AGGREGATE, THE GREATER OF: (A) $10,000 OR (B) THE AMOUNT OF THE CHARGES PAID TO 3PLAY MEDIA IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THAT THE CLAIM GIVING RISE TO SUCH LAIBILITY AROSE.
- c. NOTWITHSTANDING ANY OF THE FOREGOING IN THIS SECTION, THE LIMITATIONS SET FORTH IN SECTION 12(b) SHALL NOT APPLY IN THE CASE OF (I) BREACHES OF THE “CONFIDENTIALITY” SECTION HEREOF, (II) DAMAGES RESULTING FROM INTENTIONAL TORTS OR (III) FEES PAYABLE BY COMPANY UNDER THIS AGREEMENT.
Either party may terminate this Agreement upon written notice to the other party in the event that the other party shall have breached any of its material obligations hereunder and shall not have cured such default within forty-five (45) days after written notice of such default.
14. Suspension of Services
If Company fails to pay 3Play Media’s charges (other than disputed charges) within sixty (60) days after the applicable due date of the invoice, 3Play Media may discontinue providing Services, which may include access to download Work or Deliverables and access to 3Play Media’s application programming interface (API). For clarity, we will not suspend Services while Company is disputing charges reasonably and in good-faith and is cooperating diligently in resolving the dispute. 3Play Media reserves the right to suspend or otherwise restrict access to 3Play Media’s online account system, plugins and/or interactive tools if Company has not placed any orders with 3Play Media for at least six (6) months and no prepay balance remains.
15. Choice of Law
This Agreement shall be governed and interpreted pursuant to the laws of the Commonwealth of Massachusetts, United States of America, notwithstanding any principles of conflicts of law.
16. Dispute Resolution
All disputes arising out of or relating to this Agreement shall be finally resolved by arbitration conducted in the English language in Boston, Massachusetts, U.S.A. under the commercial arbitration rules of the American Arbitration Association. The parties shall appoint as sole arbitrator a retired judge who presided in the Commonwealth of Massachusetts. The parties shall bear equally the cost of the arbitration (except that the prevailing party shall be entitled to an award of reasonable attorneys’ fees incurred in connection with the arbitration in such an amount as may be determined by the arbitrator). All decisions of the arbitrator shall be final and binding on both parties and enforceable in any court of competent jurisdiction. Under no circumstances shall the arbitrator be authorized to award punitive damages, including but not limited to federal or state statutes permitting multiple or punitive damage awards. Any purported award of punitive or multiple damages shall be beyond the arbitrator’s authority, void, and unenforceable.
Notwithstanding the foregoing, we shall be entitled to seek injunctive relief, security, or other equitable remedies from the United States District Court for the District of Massachusetts or any other court of competent jurisdiction without the requirement of posting bond.
If any part of this Agreement is held to be unlawful, void, or unenforceable, that part will be deemed severable and shall not affect the validity and enforceability of the remaining provisions.
18. Purchase Orders
Any purchase orders issued by Company to 3Play Media in connection with the Services are provided for administrative purposes only. Any terms and conditions set forth in such Company purchase orders shall be void and have no force or effect hereunder unless any such terms and conditions are expressly accepted in writing and signed by an authorized representative of 3Play Media.
19. Force Majeure
Neither party shall be liable for delay or inability to perform caused by acts of God, governmental actions, labor unrest, acts of terrorism, riots, unusual traffic delays or other causes beyond its reasonable control.
3Play Media warrants that it will maintain sufficient insurance coverage to enable it to meet its obligations and liabilities created by this Agreement or as otherwise required by applicable law.
3Play Media will comply with all applicable international, federal, state, and local laws and regulations in connection with the Services, including but not limited to, antitrust, export, and anti-corruption laws (e.g., the U.S. Foreign Corrupt Practices Act), in performing work hereunder. 3Play Media will comply with all U.S. federal and state non-discrimination and affirmative action laws with which it is legally required to comply.
21. Entire Agreement
This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements, whether written or oral, with respect to the subject matter contained in this Agreement.
Supplemental Terms and Conditions
In addition to General Terms and Conditions, the following provisions shall also apply but solely with regard to captioning and transcription services:
- a. Audio Quality. Company agrees and understands that the standard rates described in Exhibit A are contingent on the Source Material being deemed “Good Audio” and that poor audio characteristics may increase pricing for the Services. “Good Audio” shall mean any Source Material that is clearly recorded in a controlled environment with one person talking at a time with minimal background noise and no media defects. The format must be recorded digitally or transferred to digital format for use with our account system. Company acknowledges and agrees that any audio that is not Good Audio may impact the quality and accuracy of the Deliverable.
- b. Accuracy. For Source Materials deemed Good Audio, 3Play Media will provide an Accurate Deliverable. Accuracy shall mean: (1) words are spelled correctly; (2) phrases and sentences make sense as a stand-alone document; and (3) text is a near exact replication of spoken words. Accuracy shall also mean that the Deliverable will not have an error rate that exceeds one percent (1%). 3Play Media will transcribe all Source Material as it is spoken, including false starts or if the speaker changes direction mid-sentence, but will omit certain unintended utterances, such as “um” and “uh”. Company acknowledges and agrees that such false starts or unintended utterances will be excluded from the Accuracy calculation.
- c. Formatting. Company understands that 3Play Media will alter caption formats and appearances within the standard specifications of the particular Deliverable ordered by Company. Additional customization will be performed at an additional fee if agreed by 3Play Media. In the event that Company provides to 3Play Media a previously produced transcript for caption production or any caption import function, 3Play Media will not correct grammar, proof-read material, or alter time codes unless Company commissions additional services. Company is solely responsible for the text alignment and caption file production process of any imported caption files.
In addition to General Terms and Conditions, the following provisions shall also apply but solely with regard to audio description services.
- a. Video Quality. Company acknowledges and agrees that 3Play Media shall have the right, in its sole and absolute discretion, to determine whether the existing pauses in dialogue are sufficient to provide description of the Source Material being presented. In the event that 3Play Media determines that the existing pause (or pauses, as applicable) are insufficient, Company further acknowledges and agrees that 3Play Media shall not include descriptive content for that particular portion of the Source Material.
- b. Captioning Data. 3Play Media requires data from caption files to help facilitate the audio description process. Company acknowledges that 3Play Media, may, in its sole and absolute discretion, reject any caption files provided by Company and not created by 3Play Media and to use its own internal process to generate the necessary caption data to perform the Services.