These SongTools Self-Serve Advertising Terms and Conditions (the“Agreement”) is entered into by and between Pentatone, Inc., a Delaware corporation (“Pentatone” or “SongTools”) and you (the “Client”).
SongTools is a music promotion and advertising internet-accessible platform (the “Platform”) that allows Client to fund and activate playlist promotion and display ads that are algorithmically generated based on Client’s distributed or uploaded digital assets without having to interact with a third party vendor or salesperson (“self-serve”). The Platform utilizes proprietary technology to bid on and deliver media on www.playlister.club, www.SongTools.io and related apps and services or across third party advertising platforms, including but not limited to (i) social media platforms (SongTools, Instagram, SnapChat, YouTube, TikTok and Google, among others) and (ii) commercial Demand-Site-Platforms or DSPs (“the Channel” or collectively “channels”) on the Client’s behalf (the "Service").
2.1 Client may subscribe or, from time to time, purchase playlist promotion packages or display ads (“Campaigns”). Each campaign purchased will specify: (a) The type of campaign being purchased, (b) the channel where they will be displayed, if applicable, (c) the Artist track, album or any other event being promoted by Client, (d) the maximum amount of money to be spent pursuant to the price of the campaign package purchased or the campaign budget set by Client, if applicable; (d) the start and end dates of the Client campaign, which could also be inferred from the campaign purchased (e.g. 1 Month Playlist Promotion); and (e) the campaign demographic targeting, if applicable. Except as otherwise specified in this Section 2.1, SongTools will not be bound by conditions or instructions printed or appearing on third party purchase orders, forms or communications submitted by or on behalf of Client, and in the event of any conflict or inconsistency between any Client provided orders, verbal or written, and these Terms and Conditions, these Terms and Conditions will control.
2.2 Campaign Effective Date and Activation. The effective date of each campaign will be the day and time Client purchased and obtained confirmation from the Service that such purchase was successful whether via email or on screen. Subject to the terms of this Agreement, at that time SongTools will activate and serve Client campaigns in accordance with the terms of this Agreement and the applicable playlist promotion or display ads campaign purchased from the Service.
2.3 Changes and Modifications to Campaigns. A campaign or portions of a campaign may only be amended as permitted by SongTools through the Service; provided, however, that SongTools may, in its sole discretion, accept a written request from Client to change the following provisions of a campaign without a formal or written request. Client shall submit changes requests by email via contact links in the platform. If SongTools agrees to such change, SongTools may indicate such agreement by implementing such change without further confirmation. When applicable, SongTools will perform changes to maximize performance of a particular Client campaigns and will implement such changes without confirmation from Client. Notwithstanding anything to the contrary in this Section 2.3, in no event shall a change to the overall start or end date of a Client Ad campaign or the total spend amount under a Client campaign be deemed a change and shall only be accomplished through additional purchases, downgrades or upgrades made available by SongTools through the Service.
2.4. Campaigns Communications, Email and Password Use. SongTools will use Client’s email address to send important notices regarding Client’s campaigns, which may include purchase confirmations. SongTools cannot accept responsibility for any email messages not received by Client, or for any delay in the receipt or delivery of any email notifications. If Client makes email account available to any other individual, Client agrees that he/she is responsible for any release of any Account information to such individual. It is Client’s sole responsibility to ensure that the email address Client provides to SongTools is current, accurate and reachable. SongTools is not responsible for loss of messages and other consequences if Client does not provide an accurate and current email address or if Client fails to check email periodically. Furthermore, Client must keep SongTools current with any changes to Client’s email address. SongTools will never use Client’s email address to ask Client to verify any personal information, including username, password, or any personal identification number (PIN) or payment methods, including credit card numbers or any other third-party service account information. Client should determine what password will be used and the identity of the password is not communicated or available to SongTools. Client agrees that SongTools is authorized to act on instructions received under Client’s password. Client accepts responsibility for the confidentiality and security of password and agrees to change the password regularly. Unsuccessful attempts to gain access to Service with an invalid password may lock Client out of Service. To re-establish authorization to use Service, Client must contact SongTools to have password reset or to obtain a new temporary password. Minimum password requirements are enforced when setting the password.
In the event that the Client is an advertising agency, label, promoter or other entity representing an Artist (as defined in Section 3.1), including purchasing campaigns or submitting advertisements to SongTools on behalf of an Artist, this Section 3 shall apply to Client.
3.1 Artist Definition. As used herein, “Artist” means the individual, band or entity on whose behalf Client is placing Client Ads and it is the rightful owner of any rights in the content provided by Client.
3.2 Additional Representations and Warranties. Client represents, warrants and covenants that: (a) it is the authorized agent (e.g. label, promoter, distributor) of Artist and it has the legal authority to enter into this Agreement and purchase any marketing campaigns on behalf of the Artist, make all decisions, and take all actions relating to the Artist’s accounts on the Service; (b) it has or will enter into a written agreement with Artist (i) that obtains Agency Rights; (ii) that binds the Artist to terms as protective of SongTools as is this Agreement and (iii) to which SongTools is an intended third party beneficiary with respect to Client campaigns delivered on the Service, (c) it will not, without SongTools’ prior written consent: (i) make any commitments (for example, guarantees as to placement or performance of campaigns) to an Artist beyond SongTools’ obligations under this Agreement, (ii) negotiate any terms or conditions related to the Service which are inconsistent with this Agreement, or (iii) engage in any sales or marketing in connection with the Service; and (d) it will perform its duties pursuant to this Agreement in a professional manner consistent with the requirements established by SongTools Terms of Service.
3.3 Agency Relationship Termination. If Client’s relationship with an Artist terminates, Client agrees that SongTools may contract directly with such Artist to allow such Artist to continue to purchase campaigns on the Service and obtain information related to campaigns run on its behalf, including account and performance history, and that Client shall no longer have access to such Artist’s account.
3.4 Additional Liability. Without limiting any other provision of this Agreement, any acts or omissions by any Client in violation of this Agreement shall be deemed a breach of this Agreement by Client, and Client will indemnify, defend, and hold SongTools harmless from and against all damages, liabilities, costs, and expenses that SongTools may incur as the result of such violation.
4.1 Campaign Scheduling and Delivery. To the extent that the design, size, frequency, demographics, placement, positioning or any other aspects of the campaign are not specified in the package or campaign purchased by Client, SongTools will determine any of the foregoing in its sole discretion. Scheduling of delivery of any Client advertisement is subject to availability and may not be continuous. For Client campaigns where Deliverables consist of placement for a specified period of time, SongTools may deliver such Deliverables as continuous placements for that period, or some other equivalent combination of duration and rotation (e.g., 1 week of continuous exposure = 2 weeks of 50% exposure). SongTools will use commercially reasonable efforts to notify Client in advance of any inability to deliver Client advertisements in accordance with the terms of this Agreement.
4.2 Client Campaign Content. All content uploaded, distributed or provided by Client must be in compliance with the SongTools Upload Agreement, the SongTools campaign specifications and any other applicable SongTools or Third-Party Channels policies, including editorial, advertising, privacy, user experience, publicity and branding policies. All content for Client campaigns must be received via electronic file uploads through the Service. Client understands and agrees SongTools may optimize algorithmically, modify and alter the creative for any Client Uploaded Content (“Ad Optimization”). Client agrees that in connection with such Ad Optimization, SongTools may (a) rearrange Client- provided materials to create different versions of Client Ads, and (b) pause, reschedule or cancel delivery of impressions that are part of an Ad Optimization at any time. SongTools will not be required to accept changes to Client Ad content even if it has been advised of those changes by Client. Client shall not be relieved of its payment obligations for changes or an “Ad Optimization” in Client campaigns. Client will be solely responsible for all fees associated with serving any “rich media”, including but not limited to video produced by client or Artist, if applicable. If Client campaigns contain musical works, compositions or sound recordings (collectively, the "Music"), then Client agrees it has obtained all rights, licenses and permissions as may be necessary for such Music to be incorporated within Client’s campaigns. For example, ensuring that such Music can remain on the Service for unlimited time after the campaign end date.
4.3 SongTools User-Generated Content. Client acknowledges that SongTools users may use, place tracks in playlists, write reviews, comment or process content Client uploads or makes available via the Service for purposes or in ways other than SongTools or Client anticipated. Client understands and agrees that such use constitutes user-generated content for which neither SongTools nor its affiliates bear any responsibility. Client agrees that neither SongTools nor its affiliates are liable for any claims or losses based on or arising from any user-generated content, including user-generated content that makes use of Client’s content, whether on the Service or beyond. beyond.
4.4 Campaign Performance. SongTools does not guarantee the reach or performance that Client campaigns will receive, such as the number of people who will see the ads, the number of clicks the ads will get, the number of streams the song will obtain, or that content Client uploads or makes available via the Service will reach the audience targeted. SongTools cannot control how clicks are generated on Client campaigns. SongTools has systems that attempt to detect and filter certain click activity, but SongTools is not responsible for click fraud, technological issues, or other potentially invalid click activity that may affect the cost of running ads. SongTools does not guarantee perfect delivery.
4.5 Failure to Deliver and Makegoods/Remedies. If SongTools fails to deliver a campaign in accordance with the terms of this Agreement, Client’s sole and exclusive remedy shall be limited to the following, which SongTools may choose in its sole discretion: (a) a refund of the charges representing the Client campaigns that were undelivered or delivered to the wrong location, (b) placement of the Client Campaigns at a later time in a comparable position as determined by SongTools, and/or (c) an extension of the term of the campaign purchased with a refund representing any remaining undelivered Client Ads at the end of such extended term. SongTools will have no obligation to continue to deliver any such Client Ads after the term of the campaign if the campaign has been terminated by reason of Client’s breach pursuant to Section 4. SongTools will not be required to remedy under-deliveries due to delays caused by Client. Client understands that all discounts are based on Client’s commitment to fulfilling the discount criteria indicated in the campaign purchased. If, for any reason, these criteria are not satisfied at the expiration or cancellation of the campaign, Client will pay a short rate charge on all Client Ads run equal to the difference between the rate shown in the campaign and the rate earned based on the applicable rate card without consideration of any discounts.
5.1. Payment Card or Alternative Payment Method. If If Client elects to pay with a credit card, other payment card, or alternative payment method made available in the Service, Client authorizes SongTools and SongTools’ third-party payment processor (if applicable) to charge that payment method for the Charges at SongTools' convenience, including as early as at the time the order is submitted. SongTools or its third-party payment processor may run one or more payment authorization checks before the payment method is charged. SongTools may update Client’s payment information from time to time using a payment card updater. Client authorizes SongTools or its third-party payment processor, or both, to store Client’s payment information, as updated from time to time, and, if needed, to continue billing the payment method until the order for the purchased campaign has been fulfilled.
5.2. Refunds. All Sales are final and any fees paid are non-refundable. However, if SongTools cancels, at its sole discretion, a campaign before the campaign begins, SongTools will issue a full refund of payments already made for that campaign purchase. If SongTools cancels an order while that campaign is running, SongTools may provide a partial refund so that Client only pays for the time the campaign ran. Refunds may take 3-5 business days for the funds to appear in Client’s account. Client agrees that the above refund constitutes Client’s sole and exclusive remedy, and Client is responsible for, and Client’s payment method may be charged for, all fees associated with purchases already processed before cancellation.
5.3 Auto Renewing Campaigns, Memberships and Subscriptions. For automatically renewing campaigns, club memberships and/or Subscriptions, Client will be billed: (i) following submission of Client’s order; and (ii) in advance of each renewal period unless Client cancels before the next Subscription or campaign period begins. SongTools will notify Client in advance of any price changes that will take effect at the beginning of the next Subscription period. To the extent permitted by Applicable Law and in line with the authorization Client gave SongTools when Client submitted order, Client is deemed to accept the then-current price if Client does not cancel the Subscription via the Service in accordance with the cancellation policy then in effect. If Client cancels a Subscription or a membership, Client will not be refunded any amounts already paid to SongTools for that Subscription period. Client will be able to continue the order through the end of the Subscription period. If SongTools discontinues the Service for which Client has selected a Subscription, SongTools will not bill Client at the beginning of the next Subscription period.
5.4 Taxes, Levies and Past Due Amounts. Invoiced amounts and all other amounts payable by Client to SongTools are exclusive of any applicable tax, duty, levy, or other governmental charge, including but not limited to sales, use, value-added, withholding, and excise taxes (“Taxes”). Client is responsible for payment of all Taxes to the proper taxing or governmental authority. Interest will accrue on any past due amounts at the rate of the lesser of 1% per month or the lawful maximum. If Client’s payment method fails, SongTools may collect past due amounts using other collection mechanisms, and Client agrees to pay all expenses associated with such collection, including reasonable attorneys’ fees. If Client pays any amounts due with a credit card and the issuer of the credit card seeks to recover from SongTools any amounts received by SongTools from the issuer, Client will immediately remit to SongTools all amounts necessary to comply with the issuer's request and any costs and expenses incurred by SongTools in connection therewith.
5.5 Reporting. Within 2 business days of the effective date of any campaign purchase, SongTools will notify Client (either electronically or in the Service) as to whether the Client campaigns specified in the purchase have begun delivery. Thereafter, SongTools will make available to Client the campaign performance figures obtained from the channels where the campaign is being delivered. Client understands and agrees that performance reports are for Client’s convenience only and not for any other purpose, and SongTools makes no representation or warranty as to the accuracy of, and will not be bound by any information furnished in any performance report.
Either party may terminate this Agreement at any time upon 10 days written notice to the other party if the other party materially breaches this Agreement. In addition, SongTools may suspend delivery of Client campaigns under any and all orders immediately upon written notice to Client in the event of any failure by Client to make any payment hereunder when due (and, if SongTools elects to suspend delivery of any Client campaigns, the end date specified in the applicable campaign purchase will be extended by a number of days equal to the period of suspension). Sections 3.4 (Additional Liability), 4.2 (Client Ad Content), 4.5 (Failure to Deliver and Makegoods/Remedies), 5 (Payments and Reporting), 6 (Termination), 8.4 (Persistence), 9 (Confidentiality), 10 (Representations and Indemnification), 11 (Limitation of Liability), 13 (Disputes) and 15 (General) of these Terms and Conditions, together with any accrued but unpaid payment obligations of either party, will survive any expiration or termination of this Agreement.
7.1 Service Design. Client acknowledges and agrees that SongTools is, and will at all times be, the producer and sole owner of the Service, and will be responsible for the design, layout, look-and-feel, and maintenance of any and all aspects of the Service, including with respect to the display and performance of any Client campaigns. SongTools may, in its sole discretion, add channels, redesign ads, delete or replace campaign features or other areas on which Client campaigns will be displayed, even if such redesign, deletion or replacement results in the removal of Client campaigns; provided, however, that if Client campaigns are removed or not able to be served in connection with such change to the Service, as Client’s sole and exclusive remedy, Playlister will provide Client with Client campaigns that are comparable in prominence to the affected Client campaigns.
7.2 Rejection/Removal of Client campaigns. Playlister may, in its sole discretion, reject or remove any Client campaign at any time, with or without notice, which (a) violates this Agreement, the content restrictions or any other provision of the SongTools Guidelines or (b) which SongTools otherwise determines to be inappropriate for any reason in its sole discretion, whether or not such Client campaigns were previously accepted. In such event, SongTools will notify Client of the reasons for such removal or rejection, and Client will promptly re-submit a Client campaign that addresses the issues specified by SongTools.
8.1 License to Client Materials. As per SongTools Upload Agreement, Client hereby grants to SongTools (and its affiliates) a worldwide, non-exclusive, royalty-free, fully-paid license to (a) use, reproduce, perform, display, and distribute Client Ads and any related information provided by Client in connection with, on and through the Service (“Client Materials”) and (b) alter, modify, repurpose or create derivative works of Client Materials as necessary or desirable in order to serve advertising units and newsfeed content or other content on the Service. Client Ads include any copyrighted materials, and any trademarks, service marks, logos or other source or business identifiers included therein (“Trademarks”). Except as otherwise expressly set forth in this Agreement, the licenses granted under this Section 8.1 shall be for the period of the applicable campaign.
8.2 Publicity. During and after the term of this Agreement, SongTools may use Client Campaigns, name and logo, and may reference the type of advertising and dates for the advertising campaign delivered on behalf of the Client, in a factual and non-disparaging manner, for promotional or marketing purposes. In addition, SongTools may use performance data to discuss the results related to any Ad Optimization. SongTools may also reference any information publicly available about the Client on or off the Service.
8.3 Reservation of Rights. As between SongTools and Client, Client retains all rights in and to any Client Campaigns (including all Client Trademarks and all other related intellectual property rights embodied therein), and, upon the termination of this Agreement, all rights conveyed to SongTools hereunder with respect to Client campaigns will cease and all such rights will revert to Client, except as otherwise provided herein. Client will not use, reproduce or display any Trademarks of SongTools in any manner without SongTools’ prior written consent.
8.4 Persistence. Notwithstanding anything to the contrary in this Agreement, Client acknowledges and agrees that Client campaigns and other Trademarks that are used or displayed on the Service may continue to be used and displayed on the Service, even after Client has completed the ad campaign or terminated this Agreement or the applicable order, as such Client Ads or Trademarks may have been incorporated into user profiles, news feeds or other features, and that such usage and display may continue indefinitely.
9.1 Confidential Information.
(a) “Confidential Information” means information disclosed by one party (“Discloser”) (whether verbally, in writing or otherwise, and whether of a business, technical or other nature) to the other party (“Recipient”) that has been designated as confidential or that, given the nature of the information and/or the circumstances surrounding its disclosure, should reasonably be considered confidential. Without limiting the foregoing, Confidential Information of SongTools shall include all SongTools technical specifications, Contact Information, information relating to Deliverables, and any information relating to SongTools products. Recipient shall maintain in confidence Confidential Information and not disclose Confidential Information to any third party (other than its employees, agents or contractors who have a need to know and who have agreed in writing to obligations as protective of Confidential Information as set forth herein), or use or accumulate such Confidential Information for any purpose other than performance of this Agreement, without Discloser’s prior written consent. For the avoidance of doubt, the terms of this Agreement will be deemed Confidential Information of both parties. Notwithstanding the foregoing: (i) the foregoing restrictions will not apply as to any information that was in the Recipient’s possession prior to disclosure thereof by Discloser, that is or subsequently becomes available to the general public other than through a breach by Recipient, or that is independently developed by Recipient without reference to Confidential Information; and (ii) Recipient will be permitted to disclose Confidential Information to the extent required by applicable law, regulation or legal process, provided that it provides prompt written notice to Discloser of any such disclosure and provides reasonable cooperation to the Discloser in connection with any attempt to contest or limit such disclosure.
(b) Recipient agrees and acknowledges that any breach of this Section 9 will cause irreparable harm to Discloser for which monetary damages will be inadequate. Accordingly, the aggrieved Discloser will be entitled to seek and, if granted, obtain and enforce injunctive or other equitable relief (in addition to any other remedies available to it) to remedy any threatened or actual breach of Section 8 by Recipient without the necessity of posting any bond or proving any harm or damages. In addition, Recipient agrees promptly to advise Discloser in writing of any unauthorized misappropriation, disclosure or use by any person of the Confidential Information which may come to its attention and to take all steps at its own expense reasonably requested by the Discloser to limit, stop or otherwise remedy such misappropriation, disclosure or use.
(c) Recipient's obligation under this Section 9 as to any Confidential Information will continue for 5 years after its receipt of such information. Upon the Discloser’s request, Recipient will return, or, at Discloser’s option, destroy and certify destruction of, all Confidential Information (including any summaries or analyses thereof) in the Recipient’s possession.
9.2 Feedback.
Client may from time to time provide ideas, suggestions or other feedback regarding the Service (including as to improvements or modifications thereto). Both parties agree that except as otherwise agreed by SongTools in a signed writing, such ideas, suggestions and other feedback is not Confidential Information of Client and that SongTools will be entitled to use, implement disclose and otherwise exploit such feedback in any manner, without restriction or duty to account.
9.3 Public Disclosures.
Except as permitted by Section 8.2, neither party will issue any press releases, or otherwise make any public statements or communications regarding this Agreement or the relationship of the parties without the other party’s prior written consent.
10.1 Representations and Warranties. Each party represents and warrants that: (a) it is duly organized, validly existing, and in good standing under the laws of the jurisdiction in which it was organized; (b) the execution and delivery of this Agreement, and the performance of the transactions contemplated hereby, are within its corporate powers, and have been duly authorized by all necessary corporate action; and (c) its performance of this Agreement, and the other party’s exercise of its rights under this Agreement, will not result in a violation of any agreement or other obligation by which it is bound. Client further represents and warrants to SongTools that: (i) the Client campaigns shall not contain any material which violates the SongTools Guidelines or which is otherwise unlawful, defamatory or obscene, or which infringes or violates any third-party rights (including any intellectual property rights or privacy or publicity rights) or which may encourage a criminal offense or otherwise give rise to civil liability and (ii) it will comply with all applicable laws and regulations in its performance of this Agreement.
10.2 Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES REGARDING THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OR IMPLIED WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. PLAYLISTER CLUB DOES NOT WARRANT THAT THE SERVICE OR ITS DELIVERY OF ADVERTISEMENTS HEREUNDER WILL BE ERROR-FREE, UNINTERRUPTED OR CONTINUOUS. WITHOUT LIMITING THE FOREGOING, (A) PLAYLISTER CLUB SHALL HAVE NO LIABILITY FOR CLICK FRAUD OR OTHER IMPROPER ACTIONS, OR FOR INVALID CLICKS OR OTHER TECHNOLOGICAL ISSUES, EACH OF MAY AFFECT THE COST OF ADVERTISING AND (B) ANY AD OPTIMIZATION WILL BE “AS IS” AND PLAYLISTER CLUB MAKES NO REPRESENTATION THAT THE AD OPTIMIZATION WILL IMPROVE THE APPLICABLE CAMPAIGN IN ANY WAY. THE FOREGOING DISCLAIMER OF WARRANTY IS A FUNDAMENTAL PART OF THE BASIS OF THE BARGAIN HEREUNDER, AND THAT THE PARTIES WOULD NOT ENTER INTO THIS AGREEMENT ABSENT SUCH DISCLAIMER.
10.3 Indemnification. Client will indemnify and hold harmless SongTools and its affiliates, and each of their officers, directors and employees (collectively, the “Indemnified Parties”), from and against any and all expenses, damages and losses of any kind (including, without limitation, reasonable legal fees and costs) incurred by any of the Indemnified Parties arising out of or in connection with any claim by a third party (a “Third Party Claim”) against any of the Indemnified Parties resulting from: (a) any actual or alleged breach of Client’s representations or warranties under Sections 10.1; (b) any use of Contact Information in violation of Section 3.2; (c) any Client campaign or other materials provided by Client or any material to which users can link, or any products or services made available to users, through the Client Ads. SongTools will notify Client promptly of any Third Party Claim for which it seeks indemnification and will permit Client to control the defense of such Third Party Claim with counsel chosen by Client; provided, that Client will not enter into any settlement that contains any admission of or stipulation to any guilt, fault, liability or wrongdoing on the part of any Indemnified Party without SongTools’s prior written consent.
EXCEPT TO THE EXTENT ARISING OUT OF A BREACH OF CONFIDENTIALITY, PLAYLISTER CLUB WILL NOT BE LIABLE FOR LOST OF PROFITS OR OTHER CONSEQUENTIAL, SPECIAL, INDIRECT OR INCIDENTAL DAMAGES, WHETHER ARISING IN CONTRACT, TORT, INCLUDING NEGLIGENCE, WARRANTY, STRICT LIABILITY OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL PLAYLISTER CLUB’S TOTAL AGGREGATE LIABILITY TO CLIENT ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED THE AMOUNT PAID BY CLIENT TO PLAYLISTER CLUB DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DAY THE ACT OR OMISSION OCCURRED THAT GAVE RISE TO CLIENT’S CLAIM.
Excluding payment obligations, neither party will be liable for any delay or default in the performance of its obligations if such delay or default is caused by conditions beyond its reasonable control, including fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, network failures or acts of God (collectively, “Force Majeure”). If performance is delayed by more than 30 days as a result of any Force Majeure, the non-delayed party will be entitled to terminate this Agreement by written notice delivered at any time prior to the other party’s resumption of performance of this Agreement.
The laws of the State of New York, without regard to principles of conflict of laws, will govern any dispute related to this Agreement. For all such disputes, Client agrees to submit to the exclusive jurisdiction of the state and federal courts located in New York.
WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICE FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES' INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, AN ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS. CLIENT AGREES THAT, BY ENTERING INTO THIS AGREEMENT, CLIENT AND PLAYLISTER CLUB ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
Except as specifically provided herein, if any portion of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect and the court will construe any invalid or unenforceable portions in a manner that most closely reflects the effect and intent of the original language. If such construction is not possible, the provision will be severed from this Agreement and the rest of the Agreement shall remain in full force and effect. The failure by either party to enforce any provision of this Agreement shall in no way be construed to be a present or future waiver of such provision, nor in any way affect the right of such party to enforce such provision thereafter. Client may not assign or otherwise transfer (including by any reorganization, change of control, merger, acquisition or sale or transfer of all or part of its assets or business) Client’s rights or obligations under this Agreement including any purchase without the prior written permission of SongTools, and in no event will SongTools be obligated to serve Client campaigns for any third party. SongTools may freely assign or otherwise transfer its rights and obligations under this Agreement including any purchase, in whole or in part. Any purported assignment or other transfer in violation of this provision shall be null and void. This Agreement will be binding upon, and inure to the benefit of the parties and their permitted respective successors and assigns. Each of SongTools’ affiliates are express and intended third party beneficiaries of this Agreement and may enforce any of its terms and exercise any of the rights to the same extent as SongTools. Client and SongTools are independent contractors, and nothing in this Agreement is intended to or does create any type of joint venture, partnership or employer/employee relationship between Client and SongTools or its affiliates. Notices under this Agreement must be in writing and sent via facsimile, registered or certified mail or commercial courier to the parties at their respective addresses set forth herein, and in the case of SongTools, to the attention of its General Counsel. Whenever used in this Agreement, unless otherwise specified, the terms “includes”, “including”, “e.g.,”, “for example”, “for instance” and other similar terms are deemed to include the term “without limitation” immediately thereafter. This Agreement is in the English language only, which language shall be controlling in all respects, and all versions hereof in any other language shall not be binding on the parties hereto. All communications and notices to be made or given pursuant to this Agreement shall be in the English language. This Agreement (including any purchases, agreements, policies and other documents incorporated by reference herein), constitutes the entire agreement between Client and SongTools regarding the subject matter hereof and supersedes any and all prior or contemporaneous representation, understanding, agreement or communication between Client and SongTools, whether written or oral, including all terms and conditions on SongTools' rate cards or other published materials regarding such subject matter.