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Terms of Service

Mood Media

Subscription Terms

Introduction

These Subscription Terms ("Terms") form an agreement between you, on your behalf and on behalf of the entity for which you created an Account (collectively, "you" or "your"), and Muzak, LLC, a Delaware limited liability company dba MOOD MEDIA acting on its own behalf and as agent for its servicing suppliers (collectively, "Mood Media," "we," "us," or "our") with respect to your access to and use of the Mood Media offering (the "Services"). We make the Services available to you pursuant to these Terms.

These Terms incorporate by reference the Mood Media Website Terms of Service and the Services Privacy Policy. You agree that we may collect, use and share your data (including personal information), in aggregate and in personally identifiable form, according to the Services Privacy Policy.

You agree to these Terms when you create an Account on the Mood Media website and when you sign in to the Account or use the Services. IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST STOP USING THE SERVICES AND CLOSE YOUR ACCOUNT.

  1. Defined terms.
    1. "Account" means the online account you set up with us during the account creation process which is used to access and use the Services.
    2. "Applicable Law" means all local, state, federal, and national laws, statutes, ordinances, and regulations applicable to use of the Services or any Equipment.
    3. "Audio Content" means the content provided by us to be played through the Equipment or your own equipment and provided as part of the Music Services and/or any Voice Messaging Services.
    4. "Equipment" means the media player goods or equipment purchased by you from us through the Mood Media website for use in connection with the Services.
    5. "Music Services" means offering you the ability to access Audio Content via proprietary software (the "Software") through equipment owned by you or Equipment purchased from us for broadcast at the Sites.
    6. "Services" means the Music Services and any Voice Messaging Services included in your online order made through the Mood Media website.
    7. "Site(s)" means each of your business stores and/or sites located in the United States as identified by you during the order process. Sites may be added or changed with Mood Media's consent through your Account.
    8. "Subscription" means the subscription by you to receive the recurring service elements of the Services;
    9. "Voice Messaging Services" means advertising and/or informative messages relating to your products and/or services and to the Sites, whose text are scripted and/or recorded and/or uploaded and/or produced by us on the Equipment in order to be broadcast at the Sites.
  2. Ordering Services.
    1. Placing your order. Please follow the onscreen prompts to place your order using the method set out on the Mood Media website. Each order is an offer by you to buy the Services and any Equipment specified in the order subject to these Terms. Our order process allows you to check and amend any errors before submitting your order to us and you are responsible for ensuring that your order and all information provided by you in connection with the order are complete and accurate.
    2. Setting up your Account. If you are not already a Mood Media customer, you will be required to set up an Account with us as part of the order process. If you are an existing Mood Media customer, you may be required to input additional information for your Account in connection with your order of the Services and any Equipment. Registration for the Services will not affect your existing agreements with us, which shall remain in full force and effect with respect to the products and services provided under such existing agreements.
    3. Receipt of your order and acceptance. After you place your order, you will receive an acknowledgement email from us and this is the date your Subscription to the Services will start. We will also send you an email with credentials to access the Services. If we are unable to supply you with the Services or Equipment for any reason, we will inform you of this by email and will refund any amounts pre-paid by you for Services or Equipment not provided.
  3. Payment.
    1. You agree to pay for the Services and any Equipment included in your order, plus any applicable sales tax and shipping costs, at the rates specified in your order. We will take your first payment at the time you checkout your order and will take subsequent payments monthly or annually in advance (depending on whether a monthly or annual plan is selected) (“Plan Period”). You agree that we may charge the credit or debit card you provided on a periodic and recurring basis for your order amount and for the monthly or annual fee applicable to your Services Subscription. This recurring payment authorization/periodic charge shall remain in force until canceled per these Terms. You will not dispute our recurring billing with your credit or debit card issuer so long as the amount in question was for Services rendered prior to you canceling your Account in the manner required. You guarantee and warrant that you are the legal cardholder for the submitted credit or debit card and that you are legally authorized to enter into this one time and recurring billing agreement with Mood Media.
    2. YOU ARE RESPONSIBLE FOR THE TIMELY PAYMENT OF ALL FEES AND FOR PROVIDING US WITH A VALID CREDIT OR DEBIT CARD FOR PAYMENT OF ALL FEES. All fees will be billed to the credit or debit card you provide during the order process and you must keep your credit or debit card information in your Account up to date.
  4. Fees.
    1. Amounts due. In consideration of us providing the Services, you must pay the fees described in your order. You also agree to pay all attorneys' fees, litigation expenses and costs allowable by law that are incurred by us for the collection of all amounts owed by you to us.
    2. Limited time offers. If you are a new customer to Mood Media, Subscriptions to Services are subject to one of two limited time offers - a free trial for 30 days or a discount for the first 3 months of service - which you must select at the time you place your order. At the end of your free trial period (or at the start of your discount period), you'll be asked for your credit or debit card details and charged, and you'll be charged on a monthly or annual basis after such period (depending on whether a monthly or annual plan is selected), at the then-current price for the Services for the level of service you selected until you cancel.
    3. Changes in fees. Prices and availability of the Services are subject to change at any time upon thirty (30) days' prior notice. Any modified price for the Services will be automatically charged to you on your next monthly billing date following the notice period.
    4. Taxes. You are responsible for the payment of all sales, use, withholding, VAT and other similar taxes, which taxes are not included in the fees and charges in these Terms.
  5. Changes or cancellation of Services.
    1. At any time you may cancel your Subscription to the Services by accessing your Account and opting to cancel. Your cancellation will become effective at the end of the monthly billing period or annual billing period, depending on the plan selected as part of your Subscription Service. You must also delete any Software downloaded to your mobile device.
    2. At any time, you may access your Account and change your level of Services. If you change levels of Services, the change will become effective at your next monthly or annual renewal date (depending on the plan selected) and your Services fees will be adjusted accordingly.
    3. No rebate or refund (partial or otherwise) will be available in relation to pre-paid Services.
  6. Your warranties to us.
    1. When you place an order for Services and/or Equipment, and when you create an Account, you represent, warrant and covenant to us the following:
      1. You are authorized to open an Account and purchase the Services and any Equipment on behalf of the entity you name as your business in the Account form.
      2. You are a US resident that is at least eighteen (18) years old and able to form legally binding contracts under Applicable Law.
      3. You have provided for your Account a postal mailing address in the United States, an active and valid email address, and, at the appropriate time, a valid credit or debit card with a US financial institution.
      4. You shall maintain all information you provide for your Account complete, current and accurate at all times.
      5. You and your business are not listed on any sanctioned party or restricted person list maintained by the United States Department of the Treasury - Office of Foreign Asset Control, denied persons or denied entities lists maintained by the US Department of Commerce, Bureau of Industry and Security, or any similar list maintained by the United States or any other country, and you will not sell or ship any of the Audio Content or Equipment to or through Cuba, Crimea, Iran, Syria, Sudan, or North Korea.
      6. You shall not to use or attempt to use the Services from outside of the United States.
      7. You shall at all time use the Services and Equipment in compliance with Applicable Law.
      8. You have not relied upon any statement, promise or representation or assurance or warranty with respect to the Services, Equipment in these Terms.
  7. Security.
    1. Account. You acknowledge you are solely responsible for maintaining the confidentiality and security of your Account, including your access credentials. You are responsible for all activities that occur on or through your Account, and you agree to immediately notify us of any unauthorized use of your Account or any other breach of security. We shall not be responsible for any losses arising out of the use of your Account. You shall not access or attempt to access any account other than the Account.
    2. Services.We use appropriate physical, technical and administrative procedures to safeguard the Services,
  8. Subscription and copyright licenses.
    1. Limited use.Mood Media grants you a non-exclusive, non-transferable, non-sublicensable, revocable and limited license to use, access, stream, download and publicly perform the Services and the Audio Content in relation to the Music Services and/or any Voice Messaging Services as background and foreground music and sounds at the Sites subject to these Terms. You agree not to modify the Services or the Audio Content. We may monitor your compliance with these Terms, and we reserve the right to enforce these Terms.
    2. Limited warranty. We represent, warrant, and covenant that we have the authority to grant this license from the appropriate rights holders in the music and other content accessible through the Service as distributed in the United States), and we shall pay the copyright license fees (as applicable) for your use of the Music Services at the Sites as licensed hereunder. You expressly allow us to gather and share aggregate streaming/usage data and Account and Site address information with such rights holders as required for reporting, and to share aggregate song and promotional message data with corporate brands and rights holders.
    3. Limitations. This license and this representation, warranty and covenant do not include content, including Audio Content, provided by you for which you are solely responsible.
    4. Restrictions on use. We shall pay applicable copyright license fees for your use of the Services as authorized herein. You understand that the licenses that we provide do not cover any other uses of music by you including without limitation: music performed in Sites by a live band, orchestra DJ or VJ; or music included in commercial television, radio or cable programming or digital signage. If you are unsure if your business will be covered by our licensing, please call us to confirm before purchase at 1-800-927-5000.
  9. Communications.
    1. We may contact you regarding your Account, the Services, the Equipment, or other offers from us. You may opt out of email contact or SMS texts from us by following the instructions included with the communications.
    2. You consent to our storage and use of your Account information (including email address, cellphone number, and credit or debit card account information) in connection with providing the Services to you as described in these Terms, maintaining your Account, and billing fees with respect to the Services.
  10. System and equipment requirements.
    1. Use of the Services requires the following items, which may change from time to time and which are your responsibility:
      1. An active Mood Media Account in good standing for receipt of the Services.
      2. A computer with web browsing capabilities by which to activate your Account, any Equipment, and any Software downloaded to your cellphone, and to manage your Account.
      3. A sound system or other Equipment purchased from us.
      4. Internet access is not included as part of the Services, and third party fees may apply. Because use of the Services involves the Software and Internet access, Your ability to use the Service may be affected by the performance of Your broadband service. We are not responsible for Services interruptions caused by disruptions of your internet service.
  11. Equipment.
    1. Title. Title to and risk in the Equipment purchased by you will pass to you on delivery. You must verify the state of the Equipment as delivered and shall notify us of any defects within 48 (forty eight) business hours after delivery.
    2. Installation. You are solely responsible for the installation of the Equipment and compliance with the installation guidelines and user manual provided by us, if any.
    3. Limited warranty. We warrant the Equipment to be free from original defects in material and workmanship for a period of twelve (12) months from the shipping date. You agree to contact the Mood Media's customer support center to troubleshoot the Equipment. We shall, in our sole discretion, replace defective Equipment, which shall be our sole liability and your exclusive remedy hereunder. You shall be responsible for all applicable shipping charges on all replacement Equipment. The warranty does not cover: the Services, any equipment other than the Equipment; damage to the Equipment caused by the negligent or willful acts of you, your employees, agents or business invitees; use of the Equipment with products not compatible with the Equipment, or otherwise for a purpose not permitted by these Terms; Equipment modified without our express authorization, including any upload to the Equipment of anything other than the native firmware or Software, or any alteration of the Equipment serial number; theft; vandalism; water or other liquids; fire; lightning; wind; snow; or acts of God. Failure to protect the Equipment from power surges will void this warranty.
  12. Software.
    1. License. Subject to these Terms, Mood Media grants you a non-exclusive, non-transferable, non-sublicensable, revocable and limited license to use the Software and all updates and upgrades thereof solely to access and use the Services as authorized by us, on any Equipment and/or as downloaded by you on any iOS-based or Android-powered mobile device you own or control (a "Mobile Device"), and only as permitted by the Usage Rules in the App Store Terms of Service (for iOS-based Mobile Devices).
    2. Restrictions. You agree not to, except as expressly permitted by these Terms, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Software, or part thereof (except as and only to the extent any foregoing restriction is prohibited by Applicable Law or to the extent as may be permitted by the licensing terms governing use of any open source components included with the Software). To the maximum extent permitted by Applicable Law, we have no obligation to provide maintenance and support for the Software.
    3. Government end-users. The Software and related documentation are "Commercial Items," as that term is defined at 48 C.F.R. § 2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," as such terms are used in 48 C.F.R. § 12.212 or 48 C.F.R. § 227.7202, as applicable. Consistent with 48 C.F.R. § 12.212 or 48 C.F.R. § 227.7202-1 through § 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to US Government end users:
      1. Only as Commercial Items; and
      2. With only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
    4. Mobile Devices:
      1. Download and use of the Software on a Mobile Device requires that you own or control your Mobile Device and the Mobile Device is compatible with the Software. You must also have an active Subscription to the Services. You acknowledge that we may from time to time issue upgraded or updated versions of the Software, and may automatically electronically upgrade or update the version of the Software that you are using on your Mobile Device. You consent to such automatic upgrading or updating on your Mobile Device. You may terminate your use of the Software at any time by deleting the Software from your Mobile Device.
      2. We may collect, use and share technical data and related information about your Mobile Device, system and application software and peripherals as provided in our Services Privacy Policy.
      3. You must comply with any applicable third party terms of agreement when using the Software
      4. You represent and warrant that (i) you are not located in a country that is subject to a US Government embargo, or that has been designated by the US Government as a "terrorist-supporting" country; and (ii) you are not listed on any US Government list of prohibited or restricted parties.
      5. iPhone and iPad are trademarks of Apple, Inc. ("Apple") registered in the U.S. and other countries. Android is a trademark of Google, Inc. ("Google").
      6. Apple. For avoidance of doubt, these Terms are solely between you and us. Apple and its subsidiaries are third party beneficiaries of this section 12 of these Terms. Apple has the right (and will be deemed to have accepted the right) to enforce this section 12 of these Terms against you as a third party beneficiary thereof. Apple has no obligation to furnish any maintenance or support for the Software. If the Software fails to conform to any applicable warranty, you may notify Apple, and Apple will refund to you the purchase price (if any) that you paid directly to Apple for the Software. To the maximum extent permitted by Applicable Law, Apple will have no other warranty obligation whatsoever with respect to the Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Mood Media's sole responsibility. Apple is not liable for and has no responsibility to address any claims by you or any third party relating to the Software, your possession and/or use thereof, or the content thereof, including:
        1. Product liability claims;
        2. Any claim that the Software fails to conform to any applicable legal or regulatory requirement;
        3. Claims arising under consumer protection or similar legislation; and
        4. Any claim that the Software infringes a third party's intellectual property rights.
      7. Google. For avoidance of doubt, these Terms are solely between you and us. Your use of Google Play is governed by a separate agreement between you and Google.
      8. Developer contact info: Direct any questions, complaints or claims regarding the Software to: Mood Media at https://hub.moodmedia.com/harmony.
  13. Audio Content and Music Services.
    1. Content selection. You are solely responsible for using your Account to select Audio Content consisting of digital sound recordings and ensuring that the Audio Content is appropriate for the needs and sensitivities of you and your business. We have activated an explicit Audio Content feature by default; however, you may change the default settings. You are responsible for and hereby release us from any and all claims or liability relating to explicit lyrics, content, topics, themes and innuendo included within the Services that may be objectionable to you, your employees or your clientele.
    2. Content you provide. In the event that you provide us with any content for addition to the Services, we may add such content to the Services in our sole discretion. Notwithstanding anything to the contrary in these Terms, you acknowledge and agree that you are responsible for securing all intellectual property rights for any and all content you provide to be added to the Services. You agree to defend and hold harmless us from and against any and all claims related to copyright or other intellectual property infringement related to content provided by you and added to or passed through the Equipment and/or the Services.
    3. Changes to content. As we may incur liability in the event that the Audio Content is broadcast in public places, we reserve the right not to distribute or broadcast any music or voice messages with explicit lyrics and/or text which may lead to legal action by a third party. We are permitted to amend the Audio Content at any time in order to comply with Applicable Law.
    4. Restrictions on use. You shall (i) only broadcast the Audio Content as foreground or background music/sounds at the Sites identified in your Account and covered by these Terms, and shall not amplify, transmit or re-transmit the broadcast of the Audio Content so as to be audible outside of any such Site; (ii) not reproduce or make any copy of the Audio Content, in whole or in part; (iii) not use the Audio Content in connection with any form of entertainment for which an entry fee is payable; (iv) not use Audio Content in conjunction with any advertising or commercial message or entertainment or other public event at a Site for which you or any other person receives consideration of any kind; (v) not use Audio Content to accompany dancing (including ballrooms, nightclubs and dance studios) bowling, skating or instructed health club classes.
    5. Support. User guides, help information and customer support for the Services, Equipment and Software are available at https://hub.moodmedia.com/harmony.
  14. Intellectual Property.
    1. Ownership. All intellectual property rights and all other rights in the Services, Software and Audio Content are owned by us or licensed to us. You agree that the Services and the Software contain proprietary information and material that is protected by intellectual property laws, and that you will not use such proprietary information or material in any way except for use of the Services in compliance with these Terms. Mood Media reserves all rights not expressly granted herein.
    2. No reproduction. No portion of the Service may be reproduced in any form or by any means, except as expressly permitted hereunder. You agree not to modify, rent, lease, loan, sell, exploit or distribute the Services.
  15. Voice Messaging Services.
    1. Script development. If purchased as part of your order, we will propose the script, recording and uploading of Voice Messaging Services for the purpose of broadcasting them at Sites subject to the fees set forth in your order. You will provide all cooperation as requested by us to ensure development of acceptable and appropriate scripts for your business and clientele.
    2. Audio Content provided by you. All provisions above regarding Audio Content shall apply to the Audio Content consisting of scripts used in Voice Messaging Services. To the extent that we do not own the intellectual property rights in the scripts, your use of such Audio Content as part of the Voice Messaging Services is conditional on you obtaining a written license (or sub-license) from the relevant licensor or licensors on such terms as to entitle you to lawfully provide the Audio Content to us.
    3. Indemnity. To the extent that you provide the content, we shall not be held responsible for the content of the Voice Messaging Services broadcast, and you shall indemnify us from and against any and all claims from any third party regarding the text and/or the recording of the Voice Messaging Services.
  16. Termination.
    1. Termination by Mood Media. If you fail, or we suspect that you have failed, to comply with any of the provisions of these Terms, including but not limited to failure to make any payment due, failure to provide us with a valid credit or debit card or with accurate and complete information, failure to safeguard your Account information, violation of any license to the Services, Software, or Audio Content, or infringement or other violation of third party rights, we, at our sole discretion, without notice to you may: (i) terminate these Terms and/or your Subscription, and you will remain liable for all amounts due under your Account up to and including the next billing date following the date of termination; and/or (ii) terminate or suspend the right to use the Services, Software, or Audio Content until the failure is remedied; and/or (iii) de-authorize the Equipment or otherwise preclude access to the Services (or any part thereof). We may charge you a reconnection fee in the event your Subscription is terminated or suspended as a result of your failure to pay fees due under these Terms, or as a result of your breach or violation of any of the provisions of these Terms. We may terminate or suspend your rights to the Services if any information you provide is false, inaccurate or incomplete.
    2. Reservation of rights and remedy. Mood Media reserves the right to modify or discontinue the Services at any time upon thirty (30) days' notice to you, and we will not be liable to you or to any third party should we exercise such rights. You shall reimburse us for costs and expenses incurred in connection with our exercise of our rights under these Terms, including without limitation our costs of collection and reasonable attorneys' fees.
    3. Termination by you. You may terminate your access to the Services at any time by accessing your Account and opting to cancel your Subscription as provided in section 5 above. Your Service will continue until the end of the month or year for which you have paid.
    4. Effect of termination. Upon any termination of these Terms, all licenses granted in these Terms shall automatically terminate, and you must delete all Software, including Software downloaded to your Mobile Device. Sections 3, 4, 6, 13(a), 14, 15(b), 15(c), 16-21, and 23-28 shall survive the termination of these Terms.
  17. Warranty disclaimer.
    1. OUR PERFORMANCE OF THE SERVICES IN ACCORDANCE WITH THESE TERMS IS IN LIEU OF ALL WARRANTIES, EXPRESS OR IMPLIED. NONE OF MOOD MEDIA, ITS PARTNERS OR LICENSORS, GUARANTEES, REPRESENTS, OR WARRANTS THAT YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. WE DO NOT REPRESENT OR GUARANTEE THAT THE SERVICES WILL BE FREE FROM LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, AND WE DISCLAIM ANY LIABILITY RELATING THERETO.
    2. WE MAKE NO WARRANTIES CONCERNING THE OPERATION OR CONDITION OF THE EQUIPMENT OR ANY SERVICES PROVIDED BY US UNDER THESE TERMS. YOU EXPRESSLY AGREE THAT YOUR USE OF, OR INABILITY TO USE, THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES AND ALL AUDIO CONTENT DELIVERED TO YOU THROUGH THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
    3. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, THE ABOVE EXCLUSION OF IMPLIED WARRANTIES MAY NOT APPLY TO YOU.
  18. Limitation of liability.
    1. IN NO EVENT SHALL MOOD MEDIA AND ITS RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, PARTNERS OR LICENSORS (THE "COVERED ENTTITIES") BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, COVER, PUNITIVE OR INDIRECT DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST SAVINGS) ARISING FROM YOUR USE OF ANY OF THE SERVICES OR THE EQUIPMENT OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF THE SERVICES OR THE EQUIPMENT, OR ANY INCLUDED AUDIO CONTENT, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY SERVICES, EVEN IF YOU HAVE ADVISED ANY OF THE COVERED ENTITIES OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES ARE FORESEEABLE.
    2. THE ENTIRE LIABILITY OF THE COVERED ENTITIES TO YOU FOR ANY LOSS OR DAMAGES WHATSOEVER ARISING UNDER THESE TERMS, REGARDLESS OF THE FORM OF ACTION, SHALL BE LIMITED TO AN AMOUNT NOT EXCEEDING THE FEES ACTUALLY PAID TO US BY YOU IN CONNECTION WITH THE PARTICULAR SITES WHERE, AND DURING THE BILLING PERIOD UNDER WHICH, THE EVENT GIVING RISE TO THE CAUSE OF ACTION OCCURRED.
    3. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THE PARTIES EXPRESSLY AGREE THAT THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS OF DAMAGES SET FORTH IN THESE TERMS ARE AGREED TO ALLOCATIONS OF RISK AND A PART OF THE CONSIDERATION FOR OUR PERFORMANCE OF THE SERVICES FOR YOU AND YOUR PURCHASE OF THE SERVICES AND/OR EQUIPMENT FROM US.
  19. Indemnity.
    1. Your indemnification obligations to us. By using the Services, the Equipment and the Audio Content, you agree to indemnify and hold the covered entities harmless with respect to any claims arising out of breach of these Terms or use of the Services by you, your employees, agents or business invitees, or any action taken by us as part of our investigation of a suspected violation of these Terms or as a result of our finding or decision that a violation of these Terms has occurred. this means that you cannot sue or recover any damages from any Covered Entity as a result of its decision to take any other action during the investigation of a suspected violation or as a result of our conclusion that a violation of these Terms has occurred. This waiver and indemnity provision applies to all violations described in or contemplated by these Terms.
    2. Our indemnification obligations to you. We will defend or settle any third party claim against you to the extent that such claim alleges that the Software or other Mood Media technology used to provide the Services violates a copyright, patent, trademark or other intellectual property right in the United States if you promptly notify us of the claim in writing, cooperate with us in the defense, and allow us to solely control the defense or settlement of the claim. We will pay infringement claim defense costs we incur in defending you, and settlement amounts we negotiate, as well as court awarded damages. If such a claim appears likely, then we may modify the Services or Software, procure the necessary rights, or replace them with the functional equivalent. If we determine that none of these are reasonably available, then we may terminate the Services and refund any prepaid and unused fees. We have no obligation for any claim arising from the use of content, technology or aspects not provided by us. THIS SECTION CONTAINS YOUR EXCLUSIVE REMEDIES AND OUR SOLE LIABILITY FOR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS.
  20. Force Majeure.
  21. We shall not be deemed to be in breach of these Terms or be liable for any delay or non-performance or for the consequences of any delay or non-performance which is due to Force Majeure. In the event that the Force Majeure event continues for 90 days or longer, we may terminate these Terms with immediate effect by written notice to you. As used herein, "Force Majeure" means any cause beyond our reasonable control including, but not limited to, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, pandemic, high winds or adverse weather conditions, lock-outs, strikes or other labor disputes.

  22. Confidentiality.
    1. Definition. "Confidential Information" means all non-public information disclosed by a party ("Discloser") to the other party ("Recipient"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Our Confidential Information includes without limitation the Services and the Software, their user interface design and layout, and pricing information.
    2. Protection of Confidential Information. Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care) not to disclose or use any Confidential Information for any purpose outside the scope of these Terms. Recipient must make commercially reasonable efforts to limit access to Confidential Information to those of its employees and contractors who need such access for purposes consistent with these Terms and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of these Terms.
    3. Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation of confidentiality, (ii) was known to Recipient prior to its disclosure by the Discloser, (iii) is received from a third party without breach of any obligation of confidentiality, or (iv) was independently developed by Recipient without use or access to the Confidential Information. Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice to seek a protective order. You agree that we have the right, without liability to you, to disclose any information to law enforcement authorities, government officials, or otherwise as we believe is reasonably necessary or appropriate to enforce and/or verify compliance with these Terms.
    4. Use of your name. So long as you subscribe to the Services, we may use your company name and/or logo to identify you as a customer of the Services.
    5. De-identified and aggregate data. During and after the term of these Subscription Terms, we may use and own all aggregated, de-identified data within the Services for purposes of enhancing the Services, aggregated statistical analysis, technical support and other business purposes.
  23. Changes to the Terms.
  24. Mood Media reserves the right, at any time and from time to time, to update and otherwise modify these Terms and to impose new or additional terms on your use of the Services. Your continued use of the Services following notice of these updates will be deemed to constitute your acceptance to such updates, modifications and additional terms. In no event shall any purchase order issued by you modify these Terms or be binding upon us.

  25. Notices.
  26. We may send you notice with respect to the Services by sending an email message to the email address listed in your Account by posting updated Terms on the Mood Media website at www.moodmedia.com. Notices shall become effective immediately upon posting or delivery. Any notices you send to us under these Terms must be sent by email to:[email protected]

  27. Electronic communications.
  28. Your use of our website to order the Services and your use of the Services includes the ability to enter into agreements and/or to make transactions electronically. You consent to receive communications from us electronically, including by posting notices on our website, and to conduct business with us using electronic signatures and electronic records. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that a communication be in writing.

  29. Assignment.
  30. These Terms may not be assigned by you, in whole or in part, without our prior written consent. These Terms are fully assignable by us.

  31. Governing law; Class action and jury trial waiver.
    1. The laws of the State of Texas, excluding its conflicts of law rules, govern these Terms and your use of the Services. You expressly agree that exclusive jurisdiction for any claim or dispute with us or any of the Covered Entities, or relating in any way to your use of the Services, resides in the courts of the city of Austin in the State of Texas.
    2. You agree that you and Mood Media are each waiving the right to a trial by jury or to participate in a class action or litigate on a class-wide basis. We each agree that any and all disputes must be brought in the parties' individual capacity and not as a plaintiff or class member in any purported class or representative proceeding.
  32. Severability.
  33. If any clause or provision of these Terms is found to be in violation of Applicable Law, or otherwise unenforceable, then that provision will, to the extent required, be severed from the Terms and the remainder of these Terms shall remain in full force and effect.

  34. Miscellaneous.
  35. These Terms, and all documents referenced and incorporated herein, constitute the entire agreement between you and us relating to your use of the Services. Our failure to enforce any right or provisions in these Terms will not constitute a waiver of such provision, or any other provision of these Terms. The parties are independent contractors with respect to each other. Any breach by a party of these Terms or violation of the other party's intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach.

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