3Play Media Master Services Agreement

Online Form

Last Modified: July 22, 2022

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

To view this page in French, visit www.3playmedia.ca/account-terms/.


This 3Play Media Master Services Agreement (the “Agreement”) is a legally binding agreement between the entity or individual identified in the Order (“Customer”) and 3Play Media, Inc. and its Affiliates (“3Play Media”) with regard to Customer’s use of the Services. If you are an individual and are entering into this Agreement on behalf of an entity, you represent and warrant that you have the authority to bind the entity to this Agreement.

1. DEFINITIONS

1.1. “Accessibility Service Professionals” means the individuals who perform captioning, transcription, editing, description and other related services on behalf of 3Play Media.

1.2. “Accessibility Standards” means the captioning-related standards set forth in: (a) the Accessibility Canada Act (“ACA”), (b) the Americans with Disabilities Act (“ADA”), (c) the Accessibility for Ontarians with Disabilities Act (“AODA”), (d) the Federal Communications Commission (“FCC”) rules at 47 C.F.R. § 79.1(j)(2), (e) 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”), (f) Section 508 of the Rehabilitation Act 29 U.S.C. § 794d and § 1194.24, (g) 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, and (h) WCAG 2.1 and 2.0 Success Criterion 1.2.2 (WCAG 2.0 standards are included in the Section 508 ICT).

1.3. “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. For purposes of this definition “control” means the direct possession of a majority of the outstanding voting securities of an entity.

1.4. “3Play Media Portal” means 3Play Media’s online account system and associated tools, applications and features, including the application programming interface, or API, which Customer may use to integrate its or a third party’s applications, products and services.

1.5. “Confidential Information” means information that is: (a) designated in writing as proprietary or confidential, or (b) reasonably considered confidential given the nature of the information or the circumstances under which it was disclosed.

1.6. “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.

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

1.8. “Personnel” means 3Play Media’s employees and Accessibility Service Professionals.

1.9. “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.

1.10. “Services” means the services set forth in the Order.

1.11. “Source Materials” means all videos, media, audio lines, video feed, 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 the 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).

1.12. “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 uses in order to provide the 3Play Media Portal and the Services.

2. ACCEPTANCE; TERM

2.1. Acceptance. By requesting, accessing, or using the Services, Customer confirms that it has read and understands this Agreement and agrees to be bound by it. If Customer does not want to be bound by this Agreement, it should not request, access, or use the Services.

2.2. Effective Date. The “Effective Date” of this Agreement is the date specified in the initial Order or, if such Order was an online submission, the date of submission.

2.3. Term. The parties agree that this Agreement (as updated from time to time) will be valid for any future Order, whether or not it is expressly referenced in such Order, unless the parties agree otherwise in a written document signed by both parties. Unless otherwise set forth in 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 the Agreement.

2.4. Modification. 3Play Media may modify this Agreement from time to time. Any modifications will be effective as of the Effective Date of any Order that follows the posting of a notice of such modifications to the 3Play Media Portal. This Agreement will be construed and interpreted fairly, in accordance with the plain meaning of its terms, with no presumption or inference against 3Play Media for drafting this Agreement.

3. SERVICES

3.1. Provision of Services. Subject to Customer’s compliance with this Agreement, 3Play Media will provide Customer with the Services as described in the applicable Order. Unless otherwise expressly set forth in the Order, Customer may order Services for its own benefit only, and not on behalf of any third party.

3.2. 3Play Media Portal. During the term of this Agreement, 3Play Media will provide Customer access to the 3Play Media Portal. Customer will use the 3Play Media Portal to submit Source Materials, which 3Play Media will use to provide the Customer with the Services. 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, and for keeping its Credentials secure.

3.3. Service Level Agreements. 3Play Media’s Turnaround Service Level Agreement describes duration upload limits, deadlines, and turnaround times. 3Play Media’s Quality and Accuracy Service Level Agreement describes quality thresholds and accuracy standards. Together, these agreements are called the “SLAs.” The SLAs are available at: http://www.3playmedia.com/sla/.

3.4. Location of Services. Services are performed remotely or at 3Play Media’s facilities and are not performed at Customer’s locations. Services may be performed outside of the United States.

4. SOURCE MATERIALS

4.1. Customer Responsibility. Customer represents and warrants that (i) it either owns fully and outright or otherwise possesses and has obtained all rights, approvals, licenses, consents and permissions as are necessary to perform its obligations under this Agreement, exercise its rights under this Agreement, and allow 3Play Media to use the Source Materials under this Agreement; (ii) the Source Materials, and their use in connection with the Services, as set out in the Agreement and Orders, directly or indirectly, does not infringe, violate or misappropriate any third party’s rights; and (iii) Customer complies 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 indemnify, defend and hold 3Play Media harmless from and against any and all costs, liabilities, losses, and expenses (including reasonable attorneys’ fees) incurred arising out of or in connection with a claim, suit, action, or proceeding brought by a third party against 3Play Media relating to the Source Materials or Customer’s use of the 3Play Media Materials in breach of the terms of this Agreement.

4.2. Transmission. Customer will provide 3Play Media a copy of the Source Materials and not the original Source Materials. 3Play Media is not responsible for any loss of, damage to, or destruction of any Source Materials, including any loss associated with electronic transmission.

4.3. Quality of Source Materials. 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.

5. INTELLECTUAL PROPERTY

5.1. Source Materials. 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.

5.2. Deliverables. 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 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”.

5.3. 3Play Media Materials. 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 the sole property of 3Play Media’s (or, as applicable, its licensors). All rights not expressly granted to Customer in this Agreement are reserved by 3Play Media and its licensors. 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.

5.4. 3Play Media welcomes ideas, suggestions, and feedback about the 3Play Media Materials (“Feedback”). Customer provides Feedback 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 to (1) pay compensation or provide attribution for any Feedback; or (2) respond to any Feedback.

6. FEES; PAYMENT TERMS

6.1. Payment Obligation. Customer agrees to pay 3Play Media for the Services as specified in the applicable Order, or if no rate is stated, at 3Play Media’s then-current rates, available at https://www.3playmedia.com/all-pricing/. Orders may not be canceled or refunded.

6.2. Prepayment. Customer may elect to pre-pay for the Services. The prepayment election is referred to in an Order as “Prepaid Services” or “Prepay Commitment”. This Prepay Commitment is used as a credit, against which Customer orders Services. Discounted rates are offered for Prepaid Services in return for a Customer’s promise to use the Prepaid Services in full within two years of the Effective Date (“Balance Term”). Any Prepay Commitment amount that is unused at the end of the Balance Term is forfeited.

6.3. Pay As You Go. Customer may elect to pay for Services as they are performed. The pay as you go election will be referred to in an Order as “Pay As You Go”. Customer will pay for all Pay As You Go Services performed on a monthly basis, in arrears.

6.4. Rate Increases. 3Play Media may increase standard rates and fees at any time, (but not more than once annually) upon at least 30 days of notice in the 3Play Media Portal or other prior written notice directly to Customer. 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 the SLA, there are no refunds.

6.5. Payment Terms. Payment is due within 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.

6.6. Taxes. Fees are exclusive of taxes. Customer is responsible for the payment of all sales, use and similar taxes arising from or relating to the Services, 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; PERSONAL DATA

7.1. Non-disclosure. The receiving party must not disclose the disclosing party’s Confidential Information to any person or entity except to 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 this Agreement. Each party accepts responsibility for the actions of its Representatives and will protect the other party’s Confidential Information in the same manner as it protects its own, but in no event less than reasonable care.

7.2. Not Confidential Information. Information is not Confidential Information if it: (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.

7.3. Compelled Disclosure. 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.

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

8. THIRD PARTY SITES

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 this Agreement. 3Play Media disclaims all responsibility for third party websites, and their availability.

9. ACCEPTANCE

Acceptance criteria and Accuracy Levels are described in the SLA, available at:
https://www.3playmedia.com/sla/.

10. OBLIGATIONS

10.1 By 3Play Media. 3Play Media will: (a) not 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; (b) comply with all applicable United States federal and state laws and regulations, including US export control laws and applicable privacy laws; (c) provide caption files and the audio descriptions as part of the Deliverables in accordance with the Accessibility Standards; and (d) provide the Services in a professional manner.

10.2 By Customer. Customer will: (a) not 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; (b) comply with all applicable United States federal and state laws and regulations, including US export control laws (and 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) and applicable privacy laws; (c) take reasonable precautions to prevent unauthorized or improper use or disclosure of the 3Play Media Materials; and (d) not remove, alter or obscure any trademark, proprietary label or notice associated with the 3Play Media Materials.

In addition, 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.

10.3 Limited Right to Suspend. Without limiting any other remedies, 3Play Media may suspend Customer’s right to access the 3Play Media Portal and the Services if Customer violates its obligations under this 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.

11. PUBLICITY

Customer grants 3Play Media the right to add Customer’s name and logo to customer lists and to otherwise reference Customer as a 3Play Media customer.

12. DISCLAIMER

Except as expressly provided in this Agreement: (a) 3Play Media makes no representation or warranty of any kind to Customer, whether express, implied, or statutory, including fitness for a particular purpose, non-infringement, or that the Services will meet Customer’s requirement or be uninterrupted or error-free and (b) the Services are provided on an “as is” basis only. No advice or information that Customer may obtain from 3Play Media creates any representation or warranty not expressly stated in this Agreement.

 

13. EXCLUSIONS/LIMITATION OF LIABILITY

13.1 Exclusion of Liability. To the maximum extent permitted by law, 3Play Media will not be liable to Customer or any third party for 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 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 such damages.

13.2. Limitation of Liability. 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 the fees paid by the Customer to 3Play Media under the Order for the Services which form the subject of the claim, during the six-month period immediately preceding the event giving rise to the claim.

13.3 Fair Allocation of Risk. This Agreement fairly allocates the risks between 3Play Media, on the one hand, and Customer on the other. Customer acknowledges that the pricing reflects this allocation of risk and the limitation of liability specified above, 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 years after the cause of action has accrued.

13.4. Exceptions. 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.

14. TERMINATION

14.1. For Convenience. Either party may terminate this Agreement at any time upon 30 days prior written notice if there are no active Orders. In addition, Customer may terminate any Order at its convenience upon at least 30 days prior written notice to 3Play Media. Upon such termination, 3Play Media will not refund any prepaid or unused fees, and Customer will, within five business days, pay all unpaid fees associated with any Prepaid Services and any completed Services.

14.2 For Cause. Either party may immediately terminate an Order and this Agreement: (a) upon written notice in the event of a material breach of this Agreement or the applicable Order by the other party, which is not cured within 30 days of notice, or (b) 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 60 days of filing. If Customer terminates this Agreement for cause, 3Play Media will promptly refund any prepaid unused fees. If 3Play Media terminates this Agreement for cause, Customer will promptly pay all fees that have accrued prior to the termination date, including those associated with Prepaid Services and any completed Services and will not receive any refund of fees paid.

14.3. Retrieval of Source Materials & Deliverables. 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.

15. GENERAL PROVISIONS

15.1. Assignment. 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 without the prior written consent of the other party

15.2. Governing Law. This Agreement is 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 may be brought exclusively in the state or federal courts in Boston, Massachusetts.

15.3. Notices. 3Play Media may provide notices to Customer via email or via the 3Play Media Portal. Customer must provide notices to 3Play Media by email to [email protected]

15.4. Waiver of Jury Trial. 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.

15.5. Independent Contractors. 3Play Media and Customer are independent contractors, and nothing in this Agreement creates a partnership or the relationships of employer and employee or principal and agent between them, for any purpose whatsoever.

15.6. Third Party Services. 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 this Agreement.

15.7. Entire Agreement; Conflict. This Agreement (including all applicable Orders, the DPA, and, if applicable to the Customer, Appendix A: Supplemental Terms and Appendix B: Public Entity Terms) 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. Any conflict between the terms and conditions set forth in this Agreement and any Order shall be resolved in favor of the Order.

15.8. Waiver. 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.

15.9. Survival. All rights and obligations of the parties which by their nature are reasonably intended to survive the termination or expiration will survive termination or expiration of this Agreement and each Order.

15.10. Force Majeure. Nonperformance of either party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, pandemic, 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.

15.11. Purchase Orders. Any purchase orders, work orders, acknowledgments, vendor registration forms, or other documents not signed by both parties do not add to, supersede or modify, the terms of this Agreement. Any term that purports to do so is void and without effect, even if 3Play accepts payment.

Date last modified: July 22, 2022.

 
 
 
 
 


APPENDIX A

SUPPLEMENTAL TERMS

 

A.1 APPLICABILITY.

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.

A.2 ADDITIONAL INDEMNIFICATION

A.2.1. 3Play Media Indemnification Obligation. 3Play Media will indemnify, defend and hold Customer harmless from and against any and all costs, liabilities, losses, and expenses (including 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 (a “Claim”) 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, upon final judgment of such Claim.

A.2.2. Exclusions. Excluded from the indemnification obligation set out in A.2.1 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.

A.2.3. Remedies for Infringement. If required by a court or other controlling decision, a settlement, or if determined by 3Play Media, 3Play Media will, at its own expense and 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 to 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.

A.2.4. Procedure. With respect to indemnification obligations of either party under this Agreement, the indemnified party will (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 will not settle any claim without the indemnified party’s prior written consent (such consent not to be unreasonably withheld or delayed). The indemnified party will 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 will 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 13 of the Agreement is replaced with the following:

13. EXCLUSIONS/LIMITATION OF LIABILITY

13.1. Exclusion of Liability. To the maximum extent permitted by law, neither party or its Affiliates will be liable to the other party or its Affiliates for 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 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 such damages. Notwithstanding the foregoing, all damages awarded and/or agreed to in a settlement will be treated as direct damages, regardless of how such damages are characterized.

13.2. Limitation of Liability. Except for either party’s indemnification obligations, breach of confidentiality obligations, or breach the DPA that results in actual unauthorized disclosure of Customer Data (the “Excluded Claims”), 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 the fees paid by the Customer to 3Play Media under the Order for the Services which form the subject of the claim, during the six-month period immediately preceding the event giving rise to the claim. 3Play Media’s total aggregate liability with respect to Excluded Claims will not exceed the lesser of (a) five times the fees paid by the Customer to 3Play Media under the Order for the Services which form the subject of the claim, during the six-month period immediately preceding the event giving rise to the claim or (b) $500,000.00.

13.3. Fair Allocation of Risk. This Agreement fairly allocates the risks between 3Play Media, on the one hand, and Customer on the other. Customer acknowledges that the pricing reflects this allocation of risk and the limitation of liability specified above, 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 years after the cause of action has accrued.

13.4. Exceptions. 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.

 
 
 


APPENDIX B

PUBLIC ENTITY TERMS

B.1 APPLICABILITY.

These Public Entity Terms apply to Customer if Customer is: (a) a United States local, state or federal government entity, including a public institution of higher education and (b) using the Services for a government-related purpose.

If Customer also meets the applicability requirements of Appendix A, Appendix A also applies. 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 control.

If any terms in this Agreement are invalid or unenforceable against Customer pursuant to applicable law, those terms will apply to the greatest extent permitted by applicable law, and invalid or unenforceable portions will be deemed excluded or construed in a manner most consistent with applicable law.

B.2 TERM.

Section 2.3 of the Agreement is hereby deleted. The term of this Agreement is set forth in the applicable Order.

B.3 INDEMNIFICATION.

Notwithstanding anything to the contrary, neither party has any obligation to indemnify the other under the Agreement.

B.4 CONFIDENTIALITY

Notwithstanding Section 7 of the Agreement, 3Play Media understands that Customer may be subject to open records laws. Such laws may require Customer to disclose a copy of this Agreement and related records. Customer will not be in breach of this Agreement if it is required to disclose such information pursuant to applicable law, provided that (a) prior to disclosure of any 3Play Media information (whether Confidential Information or otherwise) under any public records request or obligation, Customer notifies 3Play Media of the anticipated disclosure, so that 3Play Media has an opportunity to redact any information that is exempt from disclosure under applicable law and (b) Customer discloses only as much information as is required by law.

B.5 LIMITATION OF LIABILITY

Notwithstanding anything to the contrary in the Agreement: (a) 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 and (b) any remedy that is listed as “sole and exclusive” is the sole and exclusive remedy only to the extent permitted by applicable law. The limitations of liability set forth in the Agreement apply without waiver of Customer’s sovereign immunity.

B.6 ASSIGNMENT

Section 15.1 is replaced with the following: This Agreement is binding upon and for the benefit of 3Play Media, Customer and their permitted successors and assigns. To the maximum extent permitted by law, 3Play Media may assign this Agreement and all Orders to its Affiliates or as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets. If consent is required by law to assign this Agreement, such consent will not be unreasonably withheld. Except as expressly stated in this Agreement, to the maximum extent permitted by law, neither party may assign this Agreement without the prior written consent of the other party; any attempted assignment to the contrary will be void.

B.7 GOVERNING LAW

Section 15.2 is replaced with the following: This Agreement is governed by and construed in accordance with the laws of the state where Customer’s 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 will be brought in the state or federal courts in the state where Customer’s 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.