Publication Date: March 1, 2022
IMPORTANT – PLEASE READ CAREFULLY
THESE TERMS OF SERVICE CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU (EITHER AS AN INDIVIDUAL OR AN ENTITY) AND PLAYWIRE LLC, ITS SUPPLIERS AND LICENSORS (COLLECTIVELY, “PLAYWIRE”). THESE TERMS OF SERVICE GOVERN YOUR USE OF PLAYWIRE’S SERVICES (THE “SERVICES”) AND PLAYWIRE’S TECHNOLOGY, INCLUDING BUT NOT LIMITED TO, REVENUE INTELLIGENCE™, RAMP™, TRENDI™, RETAIL IQ™, KIDS CLUB®, PLUGIN!™, AND ALL OTHER PLAYWIRE PLATFORMS AND NETWORKS (COLLECTIVELY, THE “PLATFORMS AND NETWORKS”)
BY USING THE SERVICES, PLATFORMS AND NETWORKS, YOU AGREE THAT YOUR USE IS SUBJECT TO THESE TERMS OF SERVICE. YOUR USE OF THE SERVICES, PLATFORMS AND/OR NETWORKS ACKNOWLEDGES THAT YOU HAVE READ THESE TERMS OF SERVICE, UNDERSTAND THEM, AND AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS STATED HEREIN. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS HEREOF, CLICK ON THE “CANCEL” BUTTON AND DO NOT DOWNLOAD, INSTALL OR USE THE SERVICES PLATFORMS AND/OR NETWORKS.
IF YOU HAVE ENTERED INTO A WRITTEN AGREEMENT WITH PLAYWIRE THAT INCORPORATES THESE TERMS OF SERVICE BY REFERENCE THEREIN, THEN YOU HAVE AGREED TO BE BOUND BY THE TERMS AND CONDITIONS STATED HEREIN (EVEN IF YOU DO NOT CLICK TO ACCEPT AS DESCRIBED ABOVE).
BY ACCEPTING THESE TERMS OF SERVICE, YOU REPRESENT THAT YOU ARE AUTHORIZED TO USE THE SERVICES, PLATFORMS AND NETWORKS AND ACCEPT THE OBLIGATIONS SET FORTH HEREIN ON YOUR OWN BEHALF OR ON BEHALF OF ANOTHER PERSON OR ENTITY. ANY AND ALL UNAUTHORIZED USE OF THE SERVICES IS STRICTLY PROHIBITED.
PLAYWIRE RESERVES THE RIGHT, AT ITS SOLE DISCRETION, TO ALTER OR UPDATE THESE TERMS OF SERVICE AND/OR THE SERVICES, PLATFORMS AND/OR NETWORKS AT ANY TIME WITH OR WITHOUT NOTICE. YOU AGREE TO BE BOUND BY SUBSEQUENT CHANGES AND ACKNOWLEDGE THAT PLAYWIRE SHALL HAVE NO LIABILITY TO YOU AS A RESULT OF ANY SUCH CHANGES.
1.1 “Account” means a user profile created by you and used to make selections with respect to the presentation, management, distribution and end user access to Content.
1.2 “Content” means any and all print, digital, audio and video materials including, without limitation, text, logos, artwork, graphics, pictures, advertisements, sound and other related intellectual property contained in materials uploaded or otherwise provided by, or viewed by, you and/or your agent and/or your users in connection with the Services.
1.3 “Net Revenue” is defined as (i) all revenue actually received by Playwire from advertising placed on the Property less (ii) Playwire’s out-of-pocket third-party costs incurred in fulfilling the advertising.
2. Grant of Licenses; Scope of License; Restrictions.
2.1 Grant of Licenses.
(a) Services. Provided you comply with all terms and conditions of these Terms of Service, Playwire hereby grants to you, during the term permitted by Playwire only, a non-exclusive, non-transferable, limited license, without right of sublicense, to use the Services, Platforms and Networks.
(b) Content. You hereby grant Playwire a worldwide, royalty-free, perpetual, transferable, non-exclusive license to: (i) deliver Content in accordance with the preferences you set using your Account; (ii) secure, encode, reproduce, host, cache, route, reformat, analyze and create algorithms and reports based on access to and use of the Content; (iii) use, exhibit, broadcast, publish, publicly display, publicly perform, distribute, promote, copy, store, reproduce, of the Content on or through the Services, Platforms and/or Networks; and (iv) utilize Content to test Playwire’s internal technologies and processes.
2.2 Scope of Use.
(a) Responsibility for Content. You are solely responsible for all matters arising out of or in connection with the Content including, without limitation, ensuring that the Content does not include Prohibited Content (as defined herein) and does not violate any third-party rights, as further described therein and elsewhere in these Terms of Service.
(b) Content. Playwire and the Services, Platforms and Networks are passive conduits of the Content and Playwire has no obligation (and undertakes no responsibility or liability for any obligation) to undertake to review, monitor or oversee Content submitted, uploaded, distributed or retrieved in connection with use of the Services, Platforms and Networks. You further acknowledge and agree that the Services, Platforms and Networks and the Content provided by third parties may contain errors or omissions. You acknowledge and agree that Playwire does not screen or review published Content on the Services, Platforms and Networks to determine whether it contains false or defamatory material, or material which is offensive, indecent, objectionable, or which contains errors or omissions. Under no circumstances will Playwire be liable in any way for any user or other third-party Content, including, but not limited to, for any defamation, falsehoods, errors or omissions in any such Content, or for any loss or damage of any kind incurred as a result of the use or publication of any such content posted, delivered, emailed or otherwise transmitted via the Services, Platforms and Networks. Playwire does not guarantee that any Content will be to your satisfaction. You acknowledge Playwire is not responsible for preventing or identifying infringement of intellectual property rights or other violations associations with the Content, and Playwire assumes no responsibility for screening or monitoring for possible (i) infringement or enforcing your rights or third-party rights with respect to Content, (ii) unlawful, inappropriate or unpermitted use, (iii) libel, falsehoods, errors or omissions contained in Content, or (iv) noncompliance with FCC or other governmental laws and/or regulations. For any infringement or suspected infringement of intellectual property rights, notify Playwire in accordance with Playwire’s DMCA Notification Procedures set forth in Sections 12 and 13 below).
(d) Content Preservation and Disclosure. You expressly acknowledge and agree that Playwire may preserve Content and may also disclose Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (i) comply with legal process; (ii) enforce these Terms of Service; (iii) respond to claims that any Content violates the rights of third-parties; or (iv) protect the rights, property, or personal safety of Playwire, its users and/or the public. You acknowledge and agree that the technical processing and transmission of the Services, including your Content, may involve (i) transmissions over various networks; and/or (ii) changes to conform and adapt to technical requirements of connecting networks or devices.
(e) Third-party Publishers. You may, in your Account, indicate your preference to distribute Content via one or more online publisher(s) (each a “Publisher”), and in such case you assume all risks and liabilities associated with the distribution of Content to such Publishers including, without limitation, the obligations set forth in Section 2.3 below.
(f) Demonstration Accounts. At Playwire’s discretion, you may receive a demonstration Account which may include limited access to test certain features and functionality of the Services, Platforms and Networks free of charge (“Demo Account”). Playwire is permitted to suspend or terminate the Demo Account at any time with or without notice. At the end of any demonstration period as determined by Playwire, you are responsible for paying applicable fees for use of the Services pursuant to the payment terms and prices designated in a separate agreement between you and Playwire or, if no such agreement has been executed between you and Playwire, then pursuant to the Playwire’s then-current standard pricing schedule, which may (but is not required to) be available on the Playwire’s Website or your Account interface.
2.3 Restrictions and Other Obligations.
(a) General Restrictions. You are expressly prohibited from: (i) selling, renting, leasing, sublicensing otherwise transferring or distributing any copies of the Services, Platforms and Networks to third parties; (ii) modifying, translating, reverse engineering, decompiling, or disassembling the Services, Platforms and Networks or altering any accompanying documentation; (iii) creating derivative works based upon the Services, Platforms and Networks; (iv) altering, destroying or otherwise removing any proprietary notices, images or logos displayed, provided on or embedded within the Services, Platforms and Networks; (v) restricting or inhibiting others’ use or enjoyment of the Services, Platforms and Networks; (vi) gaining unauthorized access to other Accounts; (vii) impersonating or otherwise misrepresenting any person or entity, or making false or misleading indications of origin or fact; (viii) interfering with or disrupting the Services, Platforms and Networks or Playwire’s servers or networks connected thereto, or disobeying any requirements, procedures, policies or regulations of networks connected to the Services, Platforms and Networks; (ix) collecting or storing personally identifying information about other users for commercial or unlawful purposes; (x) impersonating any person or entity, including, but not limited to Playwire (or one of its vendors) officials, employees, or falsely stating or otherwise misrepresenting your affiliation with a person or entity or employ misleading email addresses or falsify information in the header, footer, return path, or any part of any communication, including emails, transmitted through the Services, Platforms and Networks; and (xi) any activities that constitute or aid in software piracy, including but not limited to making available tools that can be used for no purpose other than for “cracking” software or other copyrighted Content. All of the foregoing prohibited activities set forth in this Section 2.3(a) are individually and collectively referred to herein as “Prohibited Activities”. In addition to the terms and conditions enumerated herein, you further acknowledge that you have read and agree to the terms of Playwire’s Code of Conduct located at https://www.playwire.com/code-of-conduct.
(b) Content Restrictions. Nothing in these Terms of Service shall be construed to grant, by implication, estoppel, or otherwise, any license or right to use any third-party Content accessed via the Services without the prior written permission of the content owner. Any and all rights not expressly granted herein are reserved to Playwire, its licensors, suppliers or third-party content owners. You are solely responsible for all matters arising out of or in connection with the Content including, without limitation, compliance with all applicable laws, rules and regulations, and obtaining all third-party consents and other rights, approvals, licenses, consents, waivers, and other permissions necessary for the Services to be utilized hereunder and Playwire is not responsible for the: (i) selection, acquisition, distribution and licensing of Content; or (ii) acquisition and payment of any third-party licenses, rights clearances or other permissions needed from unions, guilds or other entities to use Content in the manner authorized by you in your Account. You are solely responsible for maintaining copies of the Content and shall take precautionary measures to backup and protect it. Playwire has no obligation to provide you (or any third-party) with backup or archival copies of any Content uploaded or distributed via the Services.
(c) Prohibited Circumvention of Publishers’ Ownership Rights. You acknowledge and agree that your rights to view the Publisher content that you provide and/or access on or through the Services are strictly limited to the terms of those rights that you obtained in connection with your acquisition of the Content itself. Except as permitted expressly by such rights, you may not copy, reproduce, modify, publish, transmit, transfer or sell, maintain, retain, create derivative works from, distribute or re-distribute, perform, link, display or in any way exploit any Content obtained through the Services, including, without limitation, by incorporating data and or Content from the Services into any e-mail, search, catalogue, directory, or other “white pages” products or service, whether browser-based, based on proprietary client-site applications, web-based, or otherwise. You understand, agree and acknowledge that engaging in any of the aforementioned conduct may constitute a crime and/or other form of unlawful behavior for which you may be held criminally and/or civilly liable.
(d) Prohibited Content. You shall not use the Services, Platforms and Networks to upload, download, post, e-mail, transmit, transfer, distribute, display or link to Content that: (i) promotes illegal activity, or provides instructions for illegal activity; (ii) exploits images or discloses personally identifiable information of children under eighteen (18) years of age or otherwise harms minors in any way; (iii) you do not have the right to use for the purposes of the Services, Platforms and/or Networks, including to Content that you do not have a right to transmit under any law or regulation or under contractual or fiduciary relationships including but not limited to inside information and confidential information learned or disclosed as part of employment or agency relationships or pursuant to nondisclosure agreements; (iv) is unlawful, harmful, threatening, abusive, violent, harassing, tortious, defamatory, vulgar, obscene, pornographic, libelous, invasive of privacy or publicity rights, hateful or racially, sexually, ethnically or otherwise objectionable; (v) infringes the intellectual property or proprietary rights of any third-party or contributes to inducing or facilitating such infringement.; (vi) is in any way related to any raffle, sweepstakes, contest or game requiring a fee by participants; (vii) directly or indirectly is used for “junk mail”, “spam”, “chain letters”, “pyramid schemes”, or any other like form of solicitation; (viii) contains any malicious or invasive software, or that could diminish the quality of, interfere with the performance of, or impair the functionality of the Services; or (ix) contains advertising, offers for sale, or sells any item you are prohibited from advertising or selling by any applicable local, state, national, or international law, including regulations having the force of law, or advertising, offers for sale, or sales any of the following items: any firearms, explosives, or weapons; any food that is not packaged or does not comply with all laws governing the sale of food to consumers by commercial merchants; any alcoholic beverages which are not LDA compliant; any tobacco products for human consumption, including, without limitation, cigarettes and cigars but excluding legally compliant vaping products, any items that are indecent or obscene, that are hateful or racially, sexually, ethnically or otherwise objectionable, that contain child pornography, that are otherwise pornographic in nature; any controlled substances or pharmaceuticals; any items that are counterfeit or stolen; any dangerous items; any goods or services that do not, in fact, exist; any registered or unregistered securities; any items that violate or infringe the rights of other parties; any items that you do not have the legal right to sell; any items were doing so through Playwire or the Services, Platforms and/or Networks would cause Playwire to violate any law. All of the foregoing prohibited uses set forth in this Section are individually and collectively referred to herein as “Prohibited Content”.
(e) Other Legal Restrictions. The Services, Platforms and Networks may not be used to intentionally or unintentionally violate any applicable local, state, national or international law, including, without limitation, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law or use Playwire or the Services to sell, purchase, or offer to sell or purchase any registered or unregistered securities, or upload, post, email, otherwise transmit, or post links to any material that is false, misleading, or designed to manipulate any equity, security, or other market. Playwire reserves the right to charge $0.20 per minute of output video for the cost of encoding, streaming and hosting said videos in the event of any violation of the Terms & Conditions herein. You agree to comply with all applicable laws, rules and regulations that apply to their use of the Services. You, and not Playwire, shall be responsible for ensuring that your use of the Service does not constitute a criminal offense, give rise to civil liability or otherwise violate any applicable law, regulation or ordinance, including, without limitation, U.S. law, regarding the transmission of copyrighted, trademarked Content or personally identifiable information or controlled technical data. You shall not (i) fail to complete any transaction after submitting an order to purchase any goods or services, subject to any specific terms and conditions governing such transactions, (ii) submit any order to purchase goods or services where you do not intend to complete the transaction, or (iii) purchase any goods or services that you are prohibited from purchasing or possessing by any law applicable to you in your jurisdiction. The responsibility for ensuring compliance with all such laws shall be the user’s alone. By submitting an order to purchase goods or services, you represent and warrant that you have the legal right to purchase such goods or services.
(f) Age Restriction. Use of the Services, Platforms and Networks is not intended for persons under the age of 18 (“Minors”). Minors are not authorized by Playwire to use the Services, even if Minors set up an Account or accept the terms of any agreement. Parents or guardians may authorize Minors between the ages of 13 and 17 to use the Services, provided they assume all responsibility and legal liability for the conduct of such Minor including, without limitation, monitoring the Minor’s access and use of the Services. If Playwire learns that anyone under the age of 13 is using the Services, Playwire will require verified parental or guardian consent, in accordance with the Children’s Online Privacy Protection Act of 1998 (“COPPA”).
3. Registration and Privacy.
3.2 Password. Access to the Account and many Services, Platforms and/or Networks requires a secure, individual password. You must protect your passwords from disclosure or unauthorized use and you are fully responsible for all activities that occur under your password. In the event of a suspected or actual breach of security related to your password and/or any Services, Platforms and/or Networks, you must (i) immediately notify Playwire of any unauthorized use of your password or Account or any other breach of security, and (ii) ensure that you exit from your account at the end of each session. Playwire is not liable for any loss or damage resulting from your failure to comply with the security requirements herein of any Account or your failure to maintain the confidentiality of passwords.
3.3 Termination/Suspension of Account. Playwire may immediately terminate or suspend access to the Account(s) for conduct that Playwire believes in its sole discretion (which may be based on information provided by third parties) may include or involve, without limitation: (i) violation of third-party rights such as copyright, trademark and rights of privacy and publicity; (ii) violation of the Prohibited Activities or use of Prohibited Content (each as further described in Section 2.3 above); (iii) interference with the proper functionality of any or all the Services, Platforms and Networks.
4. Beta Release.
Playwire may make certain technologies available as a beta release, which shall be identified as such (“Beta Version”). The Beta Version may contain different features than the final version that Playwire intends to distribute commercially. Playwire reserves the right at any time not to release a commercial version of the Beta Version, or, if released, to alter features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics. You agree that the Beta Version may not be suitable for production or commercial use and may contain bugs or errors affecting its proper operation. You shall comply with all conditions associated with a Beta Version, including, without limitation, installing updated versions of the technologies to replace a Beta Version.
5. Automatic Updates/Communication Features.
The Services, Platforms and Networks automatically communicate with Playwire’s servers to check for automatic updates such as bug fixes, patches, enhanced functions, security related patches or updates, and new versions of the Services. At no charge to you, Playwire may require the installation of software updates deemed reasonably necessary to address errors, bugs or other performance issues in the Account (collectively, “Updates”). Updates (if any) shall be subject to the same terms and conditions of these Terms of Service. Playwire may (but is not required to) post notices from time to time on the Playwire website explaining Updates and provide instructions associated with such Updates.
6. Compliance with U.S. Laws.
The Services, Platforms and Networks are of U.S. origin. You shall adhere to all applicable state, federal, local and international laws and treaties in all jurisdictions in which you use the Services, Services, Platforms and Networks including, without limitation, all end-user, end-use and destination restrictions issued by U.S. and other governments and the U.S. Export Administration Act and its associated regulations. For clarity, you, and not Playwire, shall be responsible for ensuring that your use of the Services, Platforms and Networks, does not constitute a criminal offense, give rise to civil liability or otherwise violates any applicable law, regulation or ordinance, including, without limitation, U.S. law, regarding the transmission of copyrighted, trademarked Content or personally-identifiable information or controlled technical data.
7. Payment Terms
7.1 Premium Partnership Payment Terms:
(a) Payment Terms. This provision is only applicable if there is not a separate agreement in writing between the parties. Also, as to any apps, this provision will not apply unless specially agreed to by the parties. Playwire will pay you 50% of the Gross Revenue less any adserving or other applicable fees (“Net Revenue”) and Playwire will retain 50% of the Net Revenue. Playwire will pay you only for months in which earned Net Revenue which exceeds $100 for that month. Net Revenue which is not paid to you in any month will be credited to your Account and paid later, when accrued Net Revenue owed to you exceeds $100.00. If you wish to receive funds via a wire transfer, then the amount must exceed $500 Playwire will pay you 60 days after the end of the month for which Net Revenue was collected (Net 60). You must keep your payment address, email address and telephone number in your Account current. If you have failed to notify Playwire of changes in your Account information, causing Playwire to be unable to notify you in writing, then this Agreement shall terminate without notice, and all payments due you shall be governed by the uncashed check provision below as if the payments due had been in the form of an uncashed check.
(b) Sandbox Revenue. For all revenue earned by content monetized using the “Sandbox” shared feature, revenue will be split equally between Playwire (33%), the content provider (33%) and the content syndicator (33%). All Sandbox revenue will be added to your net revenue total and paid out according to Playwire’s standard payout terms (Net 60).
(c) Uncashed Checks. If Playwire mails a check for a payment due to you under this Agreement to the your last known address, you must cash said check within six (6) months of the date of the check or, failing so to do, you agree that: (i) the funds represented by the uncashed check shall be disposed of without further notice as provided herein; (ii) if your last known address is in a state that has a business to business exemption in its unclaimed property laws, you agree that you shall have no further interest in the funds represented by the uncashed check, and Playwire shall succeed to your interests therein; (iii) for all other publishers, the funds represented by the uncashed check shall be deemed abandoned under applicable unclaimed property law; and (iv) you agree that six (6) months is a reasonable period after the expiration of which the actions described above shall be taken.
(d) Withholding Payment. Playwire reserves the right to withhold payment from you if you have engaged in activity that is deceptive or fraudulent in nature as determined by Playwire in its sole discretion. Examples of such deceptive or fraudulent acts may include, without limitation, clicks without referring URLs, extraordinary high numbers of repeat clicks, and clicks from non-approved root URLs. In addition, with respect to display creatives, in no event may more than five percent (5%) of unique visitors for any payout calculation come from one IP address. Impressions that are served but are not received due to end user blocking technology or software (e.g., pop-up blocking software) shall not count towards any payout calculation.
(e) Taxes. Playwire assumes no responsibility for paying income taxes on your behalf. By participating in the System, Platform and Networks, you assume complete and sole responsibility for any taxes owed as a consequence of such participation and agrees to indemnify and hold Playwire harmless from any such taxes. Playwire shall provide you with appropriate tax information, including earnings on Form 1099 as required by applicable law. If you reside in the United States, then you agree to provide your Social Security number or Federal Employee Identification Number and any other reasonable information to Playwire for tax reporting purposes. Such information will be used for no purpose other than for tax reporting purposes. If you reside outside of the United States, then you may be asked to complete appropriate forms for tax purposes and agree to accurately complete such forms. Playwire may withhold payment from you in the event that you do not provide accurate tax information or complete any necessary tax or reporting forms, as determined in Playwire’s sole and absolute discretion.
(f) Notwithstanding the foregoing, if an advertiser files for bankruptcy or any other similar proceeding (a “Bankruptcy”) at anytime and for any reason, then Playwire will not be responsible for paying any amounts to you that are not collected as a result of the such Bankruptcy. If Playwire has already pre-paid any amounts to you and Playwire is unable to collect a payment from the advertiser as a result of a Bankruptcy or for any other reason whatsoever then, in Playwire’s sole and absolute discretion, you will pay back such pre-paid amounts or Playwire may take a credit against future payments to you. Furthermore, if Playwire is required to repay any amounts as a result of such Bankruptcy and any amount have been paid in whole or in part to you, then you shall immediately return any amounts paid pursuant to the Revenue Share which are subject to such Bankruptcy.
7.2 Pay-As-You-Go Payment Terms
The Services shall be provided at the fee set forth on the registration page (the “Services Fee”). The Services Fee (and all applicable sales, use or value-added taxes) shall be paid by you by credit or debit card. You shall provide Playwire with that credit card and/or debit information required by Playwire to accept payment of the Services Fee. You hereby authorize Playwire to use such information to debit or credit, as applicable, your credit or debit card for payment of the Services Fee. In addition to any other rights granted to Playwire herein, Playwire reserves the right to suspend or terminate this Agreement and your access to the Services if Playwire is unable to use your credit or debit card for payment of the Services Fee. To the extent that this Agreement is terminated pursuant to Section 8 below, Playwire will have no obligation to refund or issue a credit (on a pro-rata basis or otherwise) to you related to the remaining portion of the Services term. In the event that the credit card that you supplied is unable to fully pay the Services Fee, you will be responsible for all expenses (including attorneys’ fees) incurred by Playwire in collecting such amounts, and Playwire reserves the right to apply a service charge to any unpaid balance at the rate of 1.5% per month (but in no event more than the maximum rate allowed by law) for any fee or other amount not paid by the due date provided.
Playwire may terminate or suspend your access to the Services, Platforms and/or Networks: (a) should you fail to comply with a term or condition these Terms of Service and/or any applicable services agreement or other written agreement between you and Playwire as determined by Playwire in its sole discretion (unless stated otherwise); (b) for any conduct that Playwire believes is or may be directly or indirectly harmful to other users, to Playwire or its subsidiaries, affiliates, or business contractors, business partners, suppliers, or to other third parties, (c) for any conduct that Playwire believes may be a violation of third-party rights such as copyright, trademark and rights of privacy and publicity or a violation of Playwire’s Prohibited Activities or restrictions on Prohibited Content (each as further described in Section 2.3 above); (d) interference with the proper functionality of any or all the Services or those of Playwire’s suppliers; and/or (e) for any conduct that violates any local, state, federal, or foreign laws or regulations.
If there is an uncured breach of this Agreement by you and the Revenue Share differed from the Revenue Share in Section 7A of these Terms of Service, then the parties agree that the Revenue Share shall automatically change to the Revenue Share set forth in Section 7A of these Terms of Service regardless of the language of the Agreement (the “Adjusted Revenue Share”) and Playwire reserves the right to retroactively impose this Adjusted Revenue Share back to the start of the Term of this Agreement. Publisher shall have a security interest in and may retain all Net Revenue so that Playwire realizes the amount owed to Playwire under the Adjusted Revenue Share. This right does not limit any other rights that Publisher may have at law or in equity.
9. Title and Ownership.
Playwire and its suppliers and licensors own all right, title and interest in and to the Services, Platforms and/or Networks, as well as any content created in conjunction with the Services including associated intellectual property rights under copyright, trade secret, patent, trademark and/or other applicable domestic and international laws. Any and all trademarks that Playwire uses in connection with the Services, Platforms and/or Networks are owned by Playwire and any goodwill associated with the use of such marks shall inure to the benefit of Playwire. In no event shall the Services be deemed sold or assigned to you. Any and all rights not expressly granted by Playwire are reserved to Playwire and its suppliers and licensors. Playwire is not required to accept unsolicited feedback. If you provide any feedback about the Services, Platforms and/or Networks to Playwire, Playwire shall own all rights in and to such feedback and any derivative technologies and compilations based on or developed through or by using such feedback. You shall take all necessary actions to affect Playwire’s rights in and to such feedback.
You represent and warrant that you are solely responsible and liable for: (a) obtaining all necessary consents, permissions, licenses and waivers from copyright owners, artist(s), actors, directors, performers, writers, producers, or any other individuals who appear in the Content or the results and proceeds of whose services are utilized in the Content; (b) obtaining any required synchronization and master use licenses from the owners of the musical compositions and sound recordings embodied in the Content (or their designated representatives); (c) any payments to any labor unions and guilds, to the extent required under applicable collective bargaining agreements or otherwise (e.g., residuals, re-use, rerun and other similar fees); (d) obtaining public performance licenses from public performance rights collection organizations (e.g., ASCAP, BMI or SESAC); (e) complying with all laws, rules and applicable regulations; (f) any Prohibited Content; and (g) abiding by all the terms of these Terms of Service.
11. Disclaimer of Playwire Warranties.
PLAYWIRE MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE OF THE SUITABILITY FOR YOUR PURPOSES OF THE SERVICES OR CONTENT YOU MAY RETRIEVE BY OR THROUGH THE SERVICES, PLATFORMS AND/OR NETWORKS, THAT THE USE OF THE SERVICES, PLATFORMS AND/OR NETWORKS SHALL BE SECURE, UNINTERRUPTED OR ERROR-FREE, OR THAT THE SERVICES, PLATFORMS AND/OR NETWORKS SHALL FUNCTION PROPERLY IN COMBINATION WITH ANY THIRD-PARTY TECHNOLOGY, HARDWARE, SOFTWARE, SYSTEMS OR DATA. THE SERVICES, PLATFORMS AND/OR NETWORKS AND ANY CONTENT RETRIEVED BY OR THROUGH THE SERVICES, PLATFORMS AND/OR NETWORKS ARE PROVIDED “AS IS” AND ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE SERVICES, PLATFORMS AND/OR NETWORKS MAY BE SUBJECT TO INTERRUPTION, LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF INTERNET APPLICATIONS AND ELECTRONIC COMMUNICATIONS AND PLAYWIRE IS NOT RESPONSIBLE FOR ANY SUCH DELAYS, MISDELIVERY, UNTIMELY DELIVERY, DELIVERY FAILURES, OR ANY OTHER DAMAGE RESULTING FROM EVENTS BEYOND PLAYWIRE’S REASONABLE CONTROL. YOU UNDERSTAND AND AGREE THAT ANY CONTENT OR OTHER MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS IN THE DOWNLOAD OF SUCH CONTENT OR OTHER MATERIAL. PLAYWIRE MAKES NO GUARANTEES AS TO THE NET INCOME THAT YOU MAY RECEIVE FROM YOUR USE OF THE SERVICES, PLATFORMS AND/OR NETWORKS.
Some jurisdictions do not allow the disclaimer of implied warranties. In such jurisdictions, the foregoing disclaimers may not apply to you insofar as they relate to implied warranties.
You shall defend, indemnify and hold harmless Playwire and its suppliers and resellers and their respective officers, employees, licensors, agents, and affiliates against any and all claims, damages, costs and expenses (including reasonable attorneys’ fees and litigation expenses) arising out of or in connection with the Content and/or your use (which includes use by your employees, agents, customers, and users) of the Services, Platforms and Networks, including but not limited to claims arising out of or relating to Prohibited Activities or Prohibited Content or your breach of any of these Terms of Services, Platforms and Networks, including but not limited to any of the representations or warranties set forth herein.
13. D.M.C.A. Copyright Infringement Notification Procedure.
Playwire respects the intellectual property rights of others and expects you and your agents to do the same. In accordance with the Digital Millennium Copyright Act of 1998, the text of which may be found on the U.S. Copyright Office website at www.copyright.gov/legislation/dmca.pdf, Playwire will respond expeditiously to claims of potential copyright infringement committed using the Services, Platforms and Networks. Copyright owners or a party authorized to act on behalf of an owner, should please report potential copyright infringement by completing the following DMCA notice and delivering it to the Playwire Designated Copyright Playwire. Upon receipt, Playwire will take whatever action, in its sole discretion, it deems appropriate, including removal of the potentially infringing material and/or termination of the potential infringer’s Account.
Please send either an email to email@example.com (Subject: DMCA Notification), a facsimile to: (954)252-2561 (Attn: DMCA Notification), or letter to the address provided below with all of the following information:
(a) Identify the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
(b) Identify the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to locate the material. Providing URLs in the body of an email is the best way to help Playwire locate Content quickly.
(c) Provide Information reasonably sufficient to permit Playwire to contact you, the complaining party, such as an address, telephone number, and, if available, an electronic mail address.
(d) A statement that you, as the complaining party, or as one who has authorization to act on behalf of the copyright owner, has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its Playwire, or the law. As an example, “I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner or its Playwire.”
(e) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. As an example, “I hereby state that the information in this notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.”
(f) Provide your full legal name and your electronic or physical signature. Such written notice should be sent to Playwire’s designated agent as follows:
4855 Technology Way
Boca Raton, Florida 33431
14. D.M.C.A. COPYRIGHT INFRINGEMENT COUNTER-NOTIFICATION.
The process for counter-notifications is governed by Section 512(g) of the Digital Millennium Copyright Act: //www.copyright.gov/legislation/dmca.pdf. To file a counter-notification with Playwire, a written communication that sets forth the items specified below must be provided. Please note that under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability. Playwire will terminate you or any user who is a repeat infringer. Accordingly, if you are not sure whether certain material infringes the copyright of others, you should contact an attorney.
(a) Elements of Counter-Notification. To file a Counter-Notification, please send either an email to firstname.lastname@example.org , or letter to the address provided below with all of the following information in this Section.
(b) To expedite Playwire’s ability to process counter notifications, please use the following format (including section numbers):
- Identify the specific URLs of material that Playwire has removed or to which Playwire has disabled access;
- Provide your full name, address, telephone number, and email address, and the username of the Account.
- Provide a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which your address is located (or Palm Beach County, Florida if your address is outside of the United States), and that you will accept service of process from the person who provided notification under subsection (c)(1)(C) or an Playwire of such person.
- Include the following statement: “I swear, under penalty of perjury, that I have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.”
- Sign the notice. If you are providing notice by e-mail, a scanned physical signature or a valid electronic signature will be accepted.
- Such written notice should be sent to Playwire’s designated agent as follows:
4855 Technology Way
Boca Raton, Florida 33431
(c) After Playwire receives a counter-notification, Playwire will forward it to the party who submitted the original claim of copyright infringement. Please note that when Playwire forwards the counter-notification, it will include any personal information provided to Playwire and submitting a counter-notification requires unencumbered consent to having such information revealed in this way. Playwire will not forward the counter-notification to any party other than the original claimant. After Playwire sends out the counter-notification, the claimant must then notify Playwire within ten (10) days that he or she has filed an action seeking a court order to restrain the infringer from engaging in infringing activity relating to the material distributed via the Services, Platforms and Networks. If Playwire receives such notification, Playwire will be unable to restore the Content to the Services, Platforms and Networks until resolution of any court action. If Playwire does not receive such notification, Playwire may, at its sole discretion, reinstate the Content.
15. Limitation of Liability.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT UNDER NO CIRCUMSTANCES SHALL PLAYWIRE OR ITS SUPPLIERS, RESELLERS, OR LICENSORS BE LIABLE TO YOU OR ANY USER BASED ON YOUR OR THAT USER’S USE OR MISUSE OF AND/OR RELIANCE ON THE SERVICES, PLATFORMS AND/OR NETWORKS OR THE CONTENT YOU RETRIEVE BY OR THROUGH THE SERVICES, PLATFORMS AND/OR NETWORKS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PLAYWIRE BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THESE TERMS OF SERVICE OR THE USE OF OR INABILITY TO USE THE SERVICES, PLATFORMS AND/OR NETWORKS OR RETRIEVE THE CONTENT BY OR THROUGH THE SERVICES, PLATFORMS AND/OR NETWORKS, EVEN IF PLAYWIRE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR EXCLUSIVE REMEDY AND PLAYWIRE’S TOTAL AGGREGATE LIABILITY RELATING TO, ARISING OUT OF, IN CONNECTION WITH, OR INCIDENTAL TO THE SERVICES AND/OR THESE TERMS OF SERVICE FOR ANY REASON SHALL BE LIMITED TO THE ACTUAL DIRECT DAMAGES INCURRED BY YOU, UP TO THE GREATER OF THE AMOUNTS PAID DIRECTLY TO PLAYWIRE FOR USE OF THE SERVICES, PLATFORMS AND/OR NETWORKS OR ONE THOUSAND U.S. DOLLARS ($1,000.00). THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE FOR ANY REASON. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU. THE PROVISIONS OF THIS SECTION DO NOT WAIVE OR LIMIT PLAYWIRE’S ABILITY TO OBTAIN INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR BREACH OF THESE TERMS OF SERVICE. SUCH LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF OTHER SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE SERVICES OR RECEIVED THROUGH ANY LINKS PROVIDED IN THE SERVICES, AS WELL AS BY REASON OF ANY INFORMATION OR ADVICE RECEIVED THROUGH OR ADVERTISED ON THE SERVICES OR RECEIVED THROUGH ANY LINKS PROVIDED IN OR THROUGH THE SERVICES. SUCH LIMITATION SHALL APPLY, WITHOUT LIMITATION, TO THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, OR LOST DATA. SUCH LIMITATION SHALL APPLY WITH RESPECT TO THE PERFORMANCE OR NON-PERFORMANCE OF THE SERVICES OR ANY INFORMATION OR MERCHANDISE THAT APPEARS ON, OR IS LINKED OR RELATED IN ANY WAY TO, THE PLAYWIRE WEBSITE OR PLAYWIRE NETWORK OR THAT OF ITS SUPPLIERS, RESELLERS, OR LICENSORS. SUCH LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
16. Force Majeure.
Playwire and its suppliers and resellers shall not be responsible for any failure to perform, or delay in performing any of its obligations to the extent that such a failure or delay results from force majeure causes beyond its control, such as acts of God or of the public enemy, acts of the government in its sovereign or contractual capacity, fires, floods, epidemics, pandemic, epidemic, quarantine restrictions, freight embargoes, strikes, civil commotion, or the like.
17. Government Restricted Rights.
If the Services, Platforms and/or Networks are licensed for use by the United States or in the performance of a U.S. government prime contract or subcontract, you agree that the Services are delivered as: (a) “commercial computer software” as defined in DFARS 252.227-7013, Rights in Technical Data—Noncommercial Items (Oct 1988), DFARS 252.227-7014 Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation (Jun 1995), and DFARS 252.211-7015 Technical Data Commercial Items (May 1991); (b) as a “commercial item” as defined in FAR 2.101; or (c) as “restricted computer software” as defined in FAR 52.227-19, Commercial Computer Software—Restricted Rights (Jun 1987); whichever is applicable. The use, duplication, and disclosure of the Services, Platforms and/or Networks by the Department of Defense shall be subject to the accompanying license agreement provided in DFARS 227.7202 (Oct 1998). All other use, duplication or disclosure of the Services, Platforms and/or Networks by the U.S. government will be subject to the accompanying license agreement and restrictions set forth in FAR 52.227-19©, Commercial Computer Software—Restricted Rights (Jun 1987), or FAR 52.227-14, Rights in Data—General Alternative III (Jun 1987). Contractor/licensor is Playwire, LLC, 4855 Technology Way, Suite 500, Boca Raton, Florida 33431
Each party shall keep confidential any confidential business information relating to the other party thereto including, but not limited to, sales information, marketing information and promotion plans discussed or disclosed in the course of performing these Terms of Service. Each party shall promptly, as of the termination of any business relationship, return to the other party any such information that is written or in tangible form (including, without limitation, all copies, summaries and notes of contents thereof). “Confidential information” shall not include information which (a) was already known to the receiving party prior to the time that it is disclosed to such party with no obligation of confidentiality; (b) is in or has entered the public domain through no breach of these Terms of Service or other wrongful act of the receiving party; (c) has been rightfully received from a third party without breach of these Terms of Service; (d) has been approved for release by the disclosing party. In the event the receiving party is requested pursuant to, or required by, applicable law, regulation, or legal process to disclose any Confidential Information of the other party, the receiving party shall use its best efforts to promptly notify the disclosing party of such request and enable the disclosing party to seek an appropriate protective order. In the event that such a protective order or other protective remedy is not obtained, the receiving party shall furnish only that portion of the Confidential Information that is legally required and will exercise its best efforts to obtain reliable assurances that confidential treatment will be accorded the Confidential Information.
19. Governing Law; Dispute Resolution; Waiver of Jury Trial.
You understand and agree that these Terms of Service shall be governed by the laws of the State of Florida as such laws apply to contracts between Florida residents performed entirely within Florida, without regard to conflict of law provisions. Any action or proceeding arising from or relating to these Terms of Service may only be exclusively brought in the State and Federal courts located in Palm Beach County, Florida and each party irrevocably submits to such exclusive jurisdiction and venue. Each party waives its right to a trial by jury for any dispute between the parties.
Except as otherwise noted, all claims arising out of or relating to these Terms of Service shall be resolved by arbitration in accordance with the Streamlined Arbitration Rules and Procedures of JAMS. Any such arbitration shall be conducted in the State of Florida, or in such other place as may be mutually agreed to by the parties and shall be heard by a panel of one arbitrator mutually acceptable to the parties or, if the parties are unable to agree on an arbitrator, an arbitrator appointed in accordance with the rules of JAMS. The decisions and awards of an arbitrator regarding any dispute shall be (i) final and valid, non-appealable, and binding upon the parties, and (ii) enforceable in any court of competent jurisdiction. In the event that any dispute arising under, in connection, or with respect to this Agreement is resolved by arbitration, the prevailing party shall be entitled to recover from the non-prevailing party the fees, costs and expenses (including, but not limited to, the reasonable fees and expenses of counsel) incurred by the prevailing party in connection with, or as a result of, such dispute. In addition, the non-prevailing party shall pay the fees and expenses of the arbitrator.
20. Entire Agreement.
These Terms of Service constitute the complete and exclusive agreement between you and Playwire with respect to its subject matter; provided, however, that if you and Playwire enter into a written services agreement or some other written agreement that expressly incorporates these Terms of Service by reference, then these Terms of Service shall be subject to such other agreement as set forth therein. If any provision of these Terms of Service is held unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable and such decision shall not affect the enforceability of such provision under other circumstances, or of the remaining provisions hereof under all circumstances. You and Playwire are independent contractors, no joint venture, partnership, employment, agency or exclusive relationship exists between you and Playwire as a result of these Terms of Service or your use of the Services, Platforms and/or Networks as authorized hereunder. The failure of you or Playwire to enforce any right or provision in these Terms of Service shall not constitute a waiver of such right or provision. You may not transfer or assign these Terms of Service or any rights or obligations hereunder, directly or indirectly, by operation of law or otherwise, without the prior written consent of Playwire. These Terms of Service shall inure to the benefit of and be binding upon Playwire’s or your respective permitted successors and assigns.
Copyright Playwire, LLC 2022. All rights reserved. All trademarks mentioned herein are the trademarks of Playwire, LLC.
Playwire may change these Terms of Service from time to time in its sole and absolute discretion.