Terms of Service

These Terms of Service (these “Terms”) describe the terms and conditions by which you (“Customer,” “you,” or “your”) may access and use Marketing Architects Inc.’s (including its affiliates, successors, and assigns) (collectively, “MA,” “we,” “us,” or “our”) video advertising generator services (the “Creative Services”) and media campaign generator services (“Media Services”) via the Audiotising platform (the “Services”).

Please read these terms carefully to ensure you understand each provision. These Terms contain a jury trial waiver provision and a mandatory arbitration provision.

By clicking “I Accept” and using the Services, or otherwise accessing any part of the Services, you represent and warrant that: you are at least eighteen (18) years of age and have full legal capacity to enter into the Terms; and you have the requisite power and authority to bind Customer to the Terms. You further agree that you have read, understood and agree to be bound by these Terms. If you do not agree to the Terms, you are not authorized to use the Services and must immediately cease any use of or access to the Services. These Terms and our Privacy Policy (located at Our Privacy Page) (the “Privacy Policy”), form the entire agreement between the parties (the “Agreement”).

MA may change, update, or replace these Terms from time to time in its sole discretion. If we do, we will let you know by revising the “Last Updated” legend at the top of these Terms. It is your responsibility to review the Terms whenever you access or use the Platform and we encourage you to do so.

If we make a material change (in MA’s determination) to these Terms, we will provide you with reasonable prior written notice of the change before it goes into effect via a means that we deem appropriate under the circumstances, which may include without limitation sending a message to your most current email address on file or to your account. Your use of the Platform after changes to the Terms go into effect will constitute your acceptance of any such changes and your consent to being bound by the revised Terms. Notwithstanding the foregoing, any changes specific to new functionality or changes required by applicable law in MA’s determination will be effective immediately upon posting.

In the event Customer is entering into this Agreement on behalf of itself and its advertiser customer(s), and unless as otherwise expressly stated in this Agreement, all references to “Customer” in these Terms shall mean the entity that has registered for an account with MA to receive the Services and that entity’s advertiser customer(s) whose marketing campaigns are performed by using MA’s Services.

1. Audiotising Platform Access, Restricted Categories, Prohibited Content, and Prohibitions

1.1. Audiotising Platform Access. The Services are offered through MA’s Audiotising platform (the “Platform”) which is accessible via audiotising.com and include a video advertising generator, a media campaign generator, and reporting. Subject to these Terms, MA hereby grants Customer a limited, revocable, non-exclusive, non-transferable, and non-sublicensable license to access and use the Platform during the term of this Agreement for Customer’s business or commercial purposes. All rights not expressly granted herein to Customer are reserved to MA, its affiliates and licensors. Customer will be given access to the Platform once Customer indicates Customer’s acceptance of this Agreement. All Customer onboarding, Creative Services, Media Services, Reporting and Payments will be handled within the Platform.

1.2. Restricted Categories. The Platform may not be appropriate for all advertisers. Advertisers in the following categories are not eligible to use the Platform: tobacco or vape products / retailers; firearms / weapons; gambling; adult / sexual products or services; cannabis / dispensary; alcohol; political campaigns; and supplements. MA reserves the right to reject any advertiser in its sole discretion. Any advertiser who provides payment and is subsequently rejected will receive a full refund. Customer represents and warrants all information provided about its applicable industry, is and remains, true, accurate, and complete.

1.3. Prohibited Content. The Platform may not be used for any content or material that: (i) violates any applicable law, rule, or regulation; (ii) promotes violence, discrimination, hatred, copyright protection circumvention, unlawful subject matter or activities, or peer-to-peer applications, networks or sites; (iii) violates any intellectual property right or other proprietary, privacy, contract, or legal right of any third party; (iv) is defamatory, libelous, deceptive, pornographic or sexually explicit; or (v) is likely to damage or cause harm or risk to MA, other customers, or recipients of video advertising via Customer media campaigns.

1.4. Prohibitions. Customer shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, or otherwise commercially exploit or make the Platform available to any third party; (ii) use the Platform in the operation of a service bureau or similar service for third parties; (iii) modify, copy, or create derivative works based on the Platform; (iv) Use any means, whether through robots, scripts, spiders, or otherwise, to access, monitor, scrape, or copy content from the Platform; (v) disassemble, reverse engineer, decompile, or otherwise seek access to the source code of the Platform; (vi) access the Platform in order to build a competitive product or service; (vii) send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs; (viii) interfere with or disrupt the integrity or performance of the Platform; (ix) attempt to gain unauthorized access to the Platform or its related systems or networks; (x) remove from the Platform any language or designation indicating the confidential nature thereof or the proprietary rights of MA; (xi) promote or engage in any illegal, deceptive, or fraudulent business practice; (xii) take any other action that could result in claims, fines, penalties, or other liability to MA, its business partners, or any of its affiliated companies; or (xiii) use the Platform in any manner not expressly permitted under this Agreement.

2. Access Credentials. Customer is solely responsible for keeping Customer’s access credentials for the Platform secure and confidential, and Customer is responsible for all use of the Platform through Customer’s access credentials, including any unauthorized use. If Customer becomes aware of any unauthorized use of Customer’s Platform account, Customer must notify MA immediately in writing. MA is not liable for any loss or damage arising from the unauthorized access to, or use of, Customer’s Account. Upon termination of this Agreement, MA may disable and/or delete Customer’s Account with or without notice to Customer.

3. Creative Services

3.1. Customer Content. The Platform uses a variety of automated means to access and ingest Customers website content (“Website Content”) for the purpose of generating Customers’ video advertising (“Video Advertising”). Customer grants MA permission to access its website and ingest its Website Content via automated means for the purpose of creating Customer’s Video Advertising. Customer may also submit text, documents, images, video, information, and materials regarding Customer’s products and services; (“Submitted Content”) to the Platform for the purpose of generating Customers’ Video Advertising. Customer represents and warrants that it has all rights, licenses, and permissions needed to provide both Website Content and Submitted Content (collectively “Customer Content”) to the Platform. Customer shall be solely responsible for all Customer Content and ensure that such Customer Content does not contain any illegal, offensive, indecent, inappropriate or objectionable conduct or content. Customer agrees that it will not provide any Customer Content to the Platform which may cause the Platform to create any Video Advertising that is harmful, misleading, or violates the rights of any third party. MA reserves the right to suspend, terminate, or otherwise modify Customer’s access to the Platform as determined in our sole discretion if we identify any such misuse. Customer represents and warrants that Customer Content is truthful, not misleading, and substantiated.

3.2. AI Disclaimer. The Platform uses Customer Content to generate Video Advertising using a variety of artificial intelligence (“AI”) tools (“AI Content”). Customer acknowledges that the AI Content is being provided “as is.” MA does not warrant or guarantee the accuracy, completeness or reliability of any AI Content, or that any AI Content or its use does not infringe any third-party rights. Due to the nature of AI, Customer acknowledges that Video Advertising generated by AI tools may be similar to, or identical to, content generated for other users or third parties, and that such outputs are not guaranteed to be unique. Customer further acknowledges that AI-generated Video Advertising may contain errors.

3.3. Review and Approval. Customer will be given the opportunity to review and approve the Video Advertising and must evaluate the accuracy, review, and approve the Video Advertising before using the Video Advertising in association with the Media Services. Customer agrees that MA shall not be liable for any damages Customer or any third party alleges to incur as a result of or relating to any Customer Content, Video Advertising, or other content generated by or accessed on or through the Platform.

3.4. Ownership. As between Customer and MA, and to the extent permitted by applicable law, Customer retains ownership of all Customer Content and any intellectual property rights with respect to any Customer Content. Due to the nature of AI, the intellectual property rights in the Video Advertising and/or the components thereof created using AI tools may not be owned by either Party. Notwithstanding the foregoing, MA owns the Video Advertising and the Video Advertising may only be accessed and used via the Platform. Customer may not download or otherwise use or share the Video Advertising outside of the Platform. Customer may use the Video Advertising only in connection with the Media Services provided on the Platform.

3.5. Video Advertising Limits. MA may impose limits on the amount of Video Advertising created with the Services.

3.6. Licenses to Customer Content and Video Advertising. Customer grants to MA and its affiliates, contractors, agents and service providers a limited, revocable, non-exclusive license to reproduce, use and distribute the Customer Content as necessary to provide the Services to Customer. Customer further grants MA the perpetual, irrevocable, non-exclusive, transferable, sub-licensable, royalty-free license, to use, copy, process, and reproduce the Customer Content and Video Advertising to improve the Platform and the Services and for the purpose of including the Video Advertising in MA’s marketing materials, websites, and portfolio of successful projects.

4. Media Services

4.1. Media Placement. MA will place Customer’s Video Advertising on streaming media platforms based on available advertising inventory including not limited to, Connected Television (CTV), Over-the-Top (OTT) television, and other streaming environments accessible via smart televisions, set-top boxes, gaming consoles, laptops, tablets, smartphones, and other internet-connected devices (“Media Campaign”). MA may expand television inventory sources and distribution channels over time to reflect evolving media consumption habits and platform capabilities.

4.2. Delivery. MA will use commercially reasonable efforts to ensure your Media Campaign is delivered according to your selected criteria, provided that MA does not guarantee the reach or performance of Media Campaign or that the Media Campaign will reach the audience intended. Delivery is subject to availability and may not be continuous or evenly paced. MA is not responsible for any technical issues that may affect the delivery of a Media Campaign. MA reserves the right to reject, pause, suspend, or cancel any Media Campaign reason in its sole discretion without any liability to Advertiser or any third party. MA makes no commitments regarding editorial adjacency, content adjacency, or competitive separation.

4.3. Targeting. Media Campaigns are targeted to a desired audience based criteria selected by Customer provided however, MA does not guarantee a Media Campaign will reach the audience targeted and Customer remains solely responsible for targeting decisions it makes. It is Customer’s sole responsibility to target Media Campaigns in compliance with applicable laws and these Terms. Customer shall not target Media Campaigns through the Platform, in any way that discriminates against people unlawfully, including discriminating against certain individuals or groups of people. Customer shall not (a) wrongfully target specific groups of people with a Media Campaign in a way that violates applicable laws; or (b) wrongfully exclude specific groups of people from seeing a Media Campaign in violation of applicable laws.

4.4. Reporting. MA monitors and delivers all Media Campaigns through the Platform. MA may make Media Campaign reporting available through the Platform in its discretion to help Customer understand how its Media Campaign performs ( “Customer Metrics”). However, MA makes no guarantees as to the accuracy, suitability, or reliability of such information (if any). Customer acknowledges and agrees that the MA definitions of the Customer Metrics will control and are final, and will prevail over any other definitions or measurements. MA is under no obligation to provide Customer with additional information regarding the performance of its Media Campaign or any other aspects of the media campaign. Reporting may only be used for Customers internal business purposes.

4.5. Under-delivery. In the event a Media Campaign under-delivers based on MA’s measurement a pro-rata refund will automatically be made for the unfulfilled portion of the Media Campaign to Customer’s payment method on record. Customer agrees that the foregoing refund constitutes its sole and exclusive remedy with respect to any under-delivery. Customer agrees all Video Advertising is deemed 100% viewable.

4.6. Discounts. MA, in its sole discretion, may choose to offer a code, credit, coupon or other discount in an amount and on terms and restrictions provided by MA. Account codes, credits, coupons, or other discounts are non-transferable and may not be redeemed for cash. If Customer’s account is cancelled, Customer will forfeit any account codes, credits, coupons, or other discounts.

4.7. Media Campaign Data. Customer’s Media Campaign Data including but not limited to Customer Metrics and other information relating to Customer’s use of the Platform, may be used to train the Platform (“Media Campaign Data”). Customer hereby grants to MA a perpetual, irrevocable, non-exclusive, transferable, sub-licensable, royalty-free license, to use, copy, process, and reproduce Media Campaign Data to provide and improve the Platform and the Services, provided that no individual element of the Usage Data, alone or in combination with any other data element, can be used to identify Customer or any individual. Without limiting the foregoing, Customer agrees MA is permitted to share, disclose, or otherwise make available all analyses regarding the Media Campaign Data with third parties provided that such analyses do not, alone or in combination with any other data element, identify Customer or any individual.

5. Data Privacy - Customer Data

5.1. Definition of Customer Data. "Customer Data" means data provided by or on behalf of Customer to Company in connection with the Agreement, limited to business contact information of Customer's employees, agents, or representatives acting in their professional capacity (e.g., name, business title, business email address, business phone number, and employer/company name). Customer Data does not include, and the parties agree no such data will be provided under this Agreement: (a) personal information or personal data (as those terms are defined under applicable data protection law) relating to individuals in their personal or consumer capacity; (b) special categories of data, sensitive personal information, or data concerning consumers' purchases, preferences, health, finances, or other consumer activity; or (c) any data subject to consumer privacy laws except to the extent such laws independently apply to business contact information.

5.2. Scope of Customer Data. Customer will provide only Customer Data consisting of business contact information for individuals employed by or affiliated with Customer, used solely for purposes of account administration, communication, and performance of this Agreement. Customer represents that it will not transmit, and Company will not knowingly collect or process, any consumer personal data, protected health information, financial account information, or other data governed by consumer-facing privacy laws, in the course of this Agreement. Should the nature of data shared between the parties change to include such categories, the parties agree to execute an appropriate data processing addendum prior to any such transmission.

6. Term and Termination

6.1. Term. The term of this Agreement shall be for as long as MA makes available, and Customer makes use of, the Platform (the “Term”).

6.2. Termination. MA may terminate this Agreement at any time, with or without cause, upon written notice to Customer (email sufficing). Customer may terminate this Agreement in the event MA materially breaches these Terms, provided that Customer gives MA written notice of the material breach and a thirty (30) day opportunity to cure the material breach. If MA does not cure the material breach within thirty (30) days after written notice is provided to MA, this Agreement will terminate at the end of the thirty (30) day cure period.

6.3. Effect of Termination. Upon termination or expiration of this Agreement or upon Customer’s termination of the Services through the Platform: (i) all licenses and rights granted to Customer hereunder shall terminate immediately; (ii) Customer shall cease using the Platform and all Services; and (iii) each party shall destroy all copies of Confidential Information of the other party.

6.4. Right to Suspend. Notwithstanding any other provision in this Agreement, MA shall be entitled, without liability to Customer, to immediately suspend, terminate, or limit Customer’s access to the Platform and/or Services at any time, in its sole and absolute discretion, with or without cause, and MA will use commercially reasonable efforts to provide written notice to Customer (email sufficing) prior to any suspension, termination, or limitation on Customer’s access to the Platform, and/or Services. Without limiting the foregoing, MA may immediately suspend, terminate, or limit Customer’s access to, the Platform, Services, without notice in the event that: (i) MA determines that the Platform and/or Services are being used in violation of any applicable law, rule, or regulation; (ii) MA determines Customer has breached any term, condition, covenant, representation or warranty under this Agreement; (iii) MA determines that the Platform and/or Services are being used in an unauthorized or fraudulent manner; (iv) MA determines that Customer’s use of the Platform, Services, adversely affects MA’s equipment or service to others; (v) MA receives any notice or claim that any Customer Content and/or Video Advertising or activities hereunder with respect to any Customer Content and/or Video Advertising, may infringe or otherwise violate any law or the rights of a third party; (vi) MA is prohibited by an order of a court or other governmental agency from providing the Platform and/or Services; or (vii) there is any other event which MA determines, in its sole discretion: (A) may create a risk to the Platform, and/or Services (B) harms or is likely to harm MA’s business reputation, or (C) is likely to adversely affect any other customers of MA if the Platform and/or Services, were not suspended. MA shall have no liability for any damages, liabilities or losses as a result of any suspension, limitation or termination of Customer’s right to use the Platform and/or Services, in accordance with this Agreement.

7. Fees and Payment

7.1. Fees. Customer pays only for Media Services. The cost of Creative Services, Reporting, and related services is included in the cost of the Media Services. All fees are payable in United States Dollars ("USD"). Amounts charged to Customer for a given period reflect actual media spend delivered in that period, and not a subscription, license, or minimum commitment.

7.2. Media Campaigns. Customer builds their Media Campaign in the Platform by inputting variables including maximum Media Campaign spend, weekly Media Campaign spend, and/or Media Campaign length. Media Campaigns shall be placed through the Platform on a weekly basis with week meaning the seven (7) consecutive day period beginning any week day at 12:00 a.m. Central Time and ending seven days later at 11:59 p.m. Central Time (Billing Week) for a minimum of four (4) Billing Weeks. A Media Campaign may commence on any day of the week.

7.3. Billing Week; Weekly Charges in Arrears. Promptly following the close of each Billing Week, MA will determine the actual media spend delivered during that Billing Week and will charge the Payment Method on File for that amount. MA will initiate each such charge on or about the first business day following the close of the Billing Week

7.4. Weekly Spend Ceiling. Customer shall designate through the Platform a maximum amount of media spend per Billing Week (the "Weekly Ceiling"). The Weekly Ceiling is the maximum amount of fees MA will charge Customer for media delivered in any Billing Week. MA will not exceed the Weekly Ceiling without Customer’s prior approval submitted through the Platform. Any spend figure MA displays to Customer is an estimate derived from the Weekly Ceiling provided for convenience only, and is not itself a spending limit.

7.5. Pacing; Daily Variation. Media delivery is not paced evenly. Spend on any individual day may exceed the pro rata daily average (the Weekly Ceiling divided by seven) where MA determines that available inventory warrants it, and may on other days fall below that average. MA does not guarantee that any Weekly Ceiling will be spent in full.

7.6. Payment Method on File; Payment Authorization. All amounts due under these Terms shall be paid exclusively through Stripe, Inc. ("Stripe"), the third-party payment processor designated by MA. Prior to the launch of any Campaign, Customer shall establish and thereafter maintain a valid payment instrument within MA’s Stripe account (the "Payment Method on File"). Customer authorizes MA to charge the Payment Method on File, without further authorization, for (a) each weekly charge and (b) any other amount that becomes due under these Terms, including spend-to-date on Pause and amounts due on Cancellation. This authorization remains in effect until all amounts owed under these Terms have been paid in full. Customer shall keep the Payment Method on File valid and current at all times. Payment by check, wire, or other means shall not satisfy Customer’s obligations unless MA consents in writing in advance.

7.7. Statements; Billing Disputes. MA will make available to Customer, the charges for each Billing Week, and will issue a Stripe receipt upon each successful charge. Customer must notify MA in writing of any good-faith dispute as to a charge within thirty (30) days after the date of the applicable statement, specifying the amount and basis of the dispute. Charges not disputed within that period are deemed accepted and final. Customer shall pay all undisputed amounts when due.

7.8. Changes to Weekly Ceiling and End Date. Customer may increase, decrease, or pause its Weekly Ceiling, and may change the Campaign end date, at any time through the Platform. Any such change takes effect beginning at least twenty four hours after the change is submitted and does not affect media already delivered or airings already placed within the commitment window. Customer remains responsible for all spend incurred before a change takes effect.

7.9. Pause. Customer may pause a Campaign at any time through the Platform. Upon pause, MA will cease scheduling further airings under that Campaign as promptly as commercially practicable; however, airings already placed with a publisher or inventory partner within the twenty four (24) hours following the pause may still run, and Customer remains responsible for those airings (the "Commitment Window"). A paused Campaign may be resumed by Customer at any time. MA will charge the Payment Method on File for all spend incurred through the end of the Commitment Window, either immediately upon pause or in the next weekly charge, at MA’s election. No further charges will be made while the Campaign remains paused.

7.10. Cancellation. A Campaign may be cancelled only after it has been paused. Cancellation permanently prevents any further airings under that Campaign and cannot be reversed; a cancelled Campaign cannot be resumed, and Customer would need to create a new Campaign at then-current rates. Customer remains liable for, and MA will charge, all spend incurred through the end of the Commitment Window that has not already been paid either immediately upon cancellation or in the next weekly charge, at MA’s election.

7.11. Over-Delivery. If media spend delivered in any Billing Week exceeds the Weekly Ceiling then in effect for that Billing Week without Customer’s prior approval, MA shall bear the excess and shall not charge Customer for it; if Customer has already been charged, MA shall credit or refund the excess within thirty (30) days of discovery or of Customer’s notice. This Section states Customer’s sole remedy for over-delivery.

7.12. Campaign Duration; No Subscription. These Terms do not create a subscription, and Customer is not enrolled in any recurring term or committed to any minimum spend, duration, or renewal. Customer may set an end date for a Campaign, and MA will charge Customer weekly, in arrears, for actual spend delivered through that end date, subject to the Weekly Ceiling. Absent a Customer-set end date, a Campaign continues until paused or cancelled by Customer or terminated in accordance with the Agreement.

7.13. Failure to Pay; Suspension. If any charge is declined, reversed, or not received in cleared funds when due, MA may, without liability and in addition to its other remedies, immediately suspend or cease performance of all Services and access to the Platform until all outstanding amounts are paid in full. Amounts not paid when due accrue interest at the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, from the due date until paid. Customer shall reimburse MA for reasonable costs of collection, including reasonable attorneys’ fees. Suspension under this Section shall not extend the Term and does not relieve Customer of amounts already incurred.

7.14. Credit Controls. Because MA bills in arrears, MA may at any time, on notice to Customer: (a) require prepayment or a deposit as a condition of continued delivery; (b) reduce the Weekly Ceiling; (c) charge the Payment Method on File more frequently than weekly, including when accrued unbilled spend exceeds $10,000 or (d) obtain a pre-authorization hold on the Payment Method on File in an amount up to the Weekly Ceiling. MA reserves the right to pause or terminate any Media Campaign for unpaid fees in its sole discretion. MA’s exercise or non-exercise of any of the foregoing does not waive any other remedy.

7.15. Processing Fees. MA shall bear all Stripe processing fees.

7.16. Chargebacks. Customer shall not initiate a chargeback, dispute, or reversal through Stripe or any card network with respect to undisputed amounts, and shall instead follow the billing dispute process. Customer shall reimburse MA for any chargeback fee assessed against MA in connection with a chargeback resolved in MA’s favor.

7.17. Stripe Terms; No Agency Liability. Customer’s use of Stripe is governed by the Stripe Services Agreement and Stripe’s privacy policy, each between Customer and Stripe. MA is not a party to that relationship and makes no representation or warranty regarding Stripe’s services. MA shall have no liability for any delay, interruption, or unavailability of Stripe. MA does not receive, process, or store Customer’s full payment credentials; such data is transmitted directly to and held by Stripe under Stripe’s PCI-DSS compliance program.

7.18. Change of Processor. MA may, on thirty (30) days’ written notice, designate a different payment processor of comparable standing, in which case references to Stripe shall be read to refer to the successor processor.

7.19. Taxes. The Fees described in these Terms are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any, and taxes are not counted against the Weekly Ceiling. Customer agrees to pay such taxes (excluding U.S. taxes based on MA’s net income) unless Customer has provided MA with a valid exemption certificate. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to MA on account thereof.

8. Intellectual Property Rights

8.1. MA Intellectual Property. As between the parties, MA (and its licensors, where applicable) exclusively own all rights in and to the Platform, Services, and any other software or materials made available to Customer under this Agreement, including any intellectual property arising from the performance of the Services, and any modifications, improvements or derivatives of the foregoing, and all intellectual property rights relating to any of the foregoing.

8.2. Feedback. Customer grants to MA a perpetual, non-exclusive license to use, modify, distribute and otherwise exploit any suggestions, ideas, enhancement requests, feedback, recommendations or other information or ideas provided by Customer or any third party on behalf of Customer relating to the Platform and/or Services.

8.3. Customer Intellectual Property. Customer shall retain ownership of the Customer Content and Customer Data, subject to the licenses granted to MA set forth in Sections in and any intellectual property rights with respect to the foregoing.

9. Confidentiality

9.1. Confidential Information. “Confidential Information” of a party means all confidential and proprietary data and information of the disclosing party that is submitted to or learned by the receiving party in connection with the Agreement, including information relating to either party’s customers, technology, operations, facilities, products, systems, procedures, practices, research, development, employees, business affairs and financial information. Without limiting the foregoing, the following shall be deemed Confidential Information of MA: the Platform and the Services. Neither party may disclose, duplicate, publish, release, transfer or otherwise make available Confidential Information of the other party in any form to, or for the use or benefit of, any person or entity without the other party’s prior written consent, or use such Confidential Information for purposes outside the scope of the Agreement. Each party may disclose the Confidential Information of the other party only to its employees, officers, directors, consultants, contractors, and agents (collectively, “Representatives”) who need to know such Confidential Information for the purposes of the Agreement. Each party will advise its Representatives of their responsibilities under this Agreement and be responsible for any breach of this Section by its Representatives. For purposes of clarity and without limiting the foregoing, MA shall have the right to disclose Customer’s Confidential Information to its subcontractors and other third party strategic partners who are providing Services in connection with the Agreement, provided that the subcontractors and other third party strategic partners are bound by confidentiality obligations at least as restrictive as the obligations in this Section. Confidential Information shall not include information that is: (i) or becomes publicly available (other than by disclosure by the receiving party in violation of the Agreement); (ii) previously known to the receiving party without an obligation of confidentiality; (iii) independently developed by the receiving party outside the Agreement; or (iv) rightfully obtained by the receiving party from third parties without an obligation of confidentiality. The confidentiality obligations of each party in this Section shall survive for one year after termination of the Agreement, and to the extent that the Confidential Information disclosed by the disclosing party under the Agreement contains trade secret information, such Confidential Information will be subject to the protection of the Agreement for the longest period of time permitted under any applicable law.

9.2. Exclusions/Remedies. The obligations in this Section do not restrict any disclosure by either party pursuant to any applicable law, or by order of any court or government agency (provided that the disclosing party will give prompt notice to the non-disclosing party of such order, if legally permissible, so that the non-disclosing party may seek a protective order or other appropriate remedy). In the event of a breach of this Section or other compromise of Confidential Information of which a party is or should be aware (whether or not resulting from a breach), such party will immediately notify the other party in a writing detailing all information known to such party about the compromise, the Confidential Information affected, and the steps taken by such party to prevent the recurrence of such breach and to mitigate the risk to the other party. The parties agree that in the event of a breach or anticipated breach of this Section, the affected party shall be entitled to seek injunctive or other equitable relief as a remedy for any such breach or anticipated breach. Any such relief shall be in addition to and not in lieu of any appropriate relief in the way of monetary damages.

10. Representations and Warranties

10.1. MA represents and warrants to Customer that MA has the necessary authority to enter into this Agreement and carry out its obligations hereunder.

10.2. Customer represents, warrants and covenants to MA that: (i) Customer has the necessary authority to enter into this Agreement and carry out its obligations hereunder; (ii) Customer is the owner of or is licensed to use and transfer the Customer Content to the Platform or otherwise provide such Customer Content to MA and all subject matter contained therein; (iii) all Customer Data provided to MA pursuant to the Agreement was collected in compliance with applicable Privacy Laws, that Customer has provided notice to individuals regarding its sharing of information with MA as required by Privacy Laws, and that MA’s use, storage or disclosure of Customer Data in accordance with the Agreement shall be in compliance with such Privacy Laws; (iv) the Customer Content does not infringe or misappropriate the copyright, patent, trademark, trade secret or other intellectual property or other proprietary rights of any third party; and (v) Customer will at all times comply with all applicable laws, rules, and regulations.

11. DISCLAIMER. THE PLATFORM, SERVICES, VIDEO ADVERTISING, REPORTING, AND ALL OTHER SOFTWARE OR MATERIALS PROVIDED BY MA TO CUSTOMER AND THE RESULTS THEREOF ARE PROVIDED “AS-IS” AND “AS AVAILABLE” AND THE WARRANTIES STATED IN SECTION 10.1 AND 10.2 ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY MA AND CUSTOMER, RESPECTIVELY. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, AND MA HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE PLATFORM, SERVICES, VIDEO ADVERTISING, REPORTING, AND ANY OTHER MATERIALS PROVIDED BY MA HEREUNDER, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND MA DOES NOT WARRANT THAT THE PLATFORM, SERVICES, DELIVERABLES, DATA, OR ANY OTHER MATERIALS PROVIDED HEREUNDER WILL MEET CUSTOMER’S REQUIREMENTS, OR BE UNINTERRUPTED, SECURE OR ERROR-FREE.

12. Indemnification

12.1. MA Indemnification. MA will defend Customer and its parent, subsidiaries and affiliates and their respective directors, employees and agents (collectively, the “Customer Indemnitees”) from and against any claim made or brought against any Customer Indemnitee by a third party alleging that the Platform as provided by MA to Customer hereunder, infringe any patent, copyright, trademark or other proprietary right, or misappropriate any trade secret of any third party and MA shall pay the damages (including reasonable attorney’s fees) finally awarded by a court or agreed to by MA in a settlement with respect to such claims. MA shall have no obligation to defend or pay damages to Customer for claims or losses arising from Customer Content; Customer’s failure to comply with applicable laws; Customer’s breach of this Agreement; the combination of the Platform, with other services, products or content; any modifications to the Platform made by any entity other than MA; or Customer’s use of the Platform or any portion thereof after MA has suspended such use or terminated this Agreement or such portion in accordance with this Agreement. If the Platform becomes or may become the subject of a claim of infringement, MA may: (i) obtain the right for Customer to continue use of the Platform; (ii) replace or provide a work-around in order to allow for Customer’s continued use of the Platform; or (iii) if MA cannot effect (i) or (ii) using commercially reasonable efforts, terminate this Agreement, in whole, or in part with respect to the infringing Platform. The provisions set forth in this Section shall be MA’s sole obligation, and Customer’s sole remedy, for any violation of third party rights by the Platform.

12.2. Customer Indemnification. Customer will defend MA and its parent, subsidiaries and affiliates and their respective directors, employees and agents (collectively, the “MA Indemnitees”) from and against any claim made or brought against any MA Indemnitee arising from or relating to any third party claims or actions based on: (i) Customer’s gross negligence or willful misconduct that arises from or is related, directly or indirectly, to this Agreement; (ii) Customer’s breach of any term, condition, covenant, representation or warranty under this; (iii) use of the Platform and/or Services in a manner not contemplated hereunder, including any use that violates any applicable law or regulation or any right of a third party; (iv) any allegation that the Customer Content violates any applicable laws, or (v) any allegation that the Customer Content infringes any patent, copyright, trademark or other proprietary right, or misappropriates any trade secret of any third party. Customer shall pay any damages (including reasonable attorney’s fees) finally awarded by a court or agreed to by Customer in a settlement with respect to such claims.

12.3. Notification. The indemnified party agrees to give the indemnifying party prompt written notice of any claim subject to indemnification; provided that an indemnified party’s failure to promptly notify the indemnifying party will not affect the indemnifying party’s obligations hereunder except to the extent that such delay prejudices the indemnifying party’s ability to defend such claim. The indemnifying party will have the right to defend against any such claim with counsel of its own choosing and to settle such claim as the indemnifying party deems appropriate, provided that the indemnifying party will not enter into any settlement that adversely affects the indemnified party’s rights, imposes any liability upon the indemnified party, or does not provide a complete release of the indemnified party without the indemnified party’s prior written consent (not to be unreasonably withheld). The indemnified party agrees to reasonably cooperate with the indemnifying party in the defense and settlement of any such claim, at the indemnifying party’s expense.

13. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL MA BE LIABLE FOR ANY LOST DATA, LOSS OF REVENUE, ANTICIPATED PROFITS, LOST BUSINESS OR LOST SALES, OR FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, AND EVEN IF MA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE TOTAL LIABILITY OF MA, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS PAID BY CUSTOMER TO MA IN THE MONTH PRECEDING THE INITIAL CLAIM GIVING RISE TO LIABILITY HEREUNDER. CUSTOMER ACKNOWLEDGES THAT MA HAS ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY SET FORTH HEREIN AND THAT THIS LIMITATION OF LIABILITY IS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.

14. Dispute Resolution; Arbitration Agreement; No Class Action

14.1. Dispute Resolution. If a dispute or claim arises under this Agreement (a “Dispute”) that the parties are unable to resolve, a party will notify the other party of the Dispute in writing (which may be via email) with as much detail as possible. Customer and a MA senior business representative with full authority to resolve the Dispute will use good faith efforts to resolve the Dispute within ten (10) business days after receipt of a Dispute notice. If the parties’ senior business representatives are unable to resolve the Dispute, or agree upon the appropriate corrective action to be taken, within such ten (10) business days, then either party may pursue arbitration as set forth in Section 14.2 below.

14.2. Arbitration. All Disputes that remain unresolved following the process set forth in Section 14.2 above shall be finally settled under by arbitration in Minneapolis, Minnesota before a neutral single arbitrator, whose decision will be final and binding, and the arbitral proceedings will be administered by JAMS under its Comprehensive Arbitration Rules and Procedures then in effect. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The parties undertake to keep confidential all awards in their arbitration, together with all materials in the proceedings created for the purpose of the arbitration and all other documents produced by another party in the proceedings not otherwise in the public domain, save and to the extent that disclosure may be required of a party by legal duty, to protect or pursue a legal right or to enforce or challenge an award in legal proceedings before a court or other judicial authority. Notwithstanding the foregoing, either party hereto shall be entitled to seek injunctive or equitable relief from a court of competent jurisdiction without the necessity of posting bond or proving actual damages.

14.3. Class Action Waiver. To the fullest extent permitted by applicable law, Customer and MA each agree that any dispute resolution proceeding will be conducted only on an individual basis and not in a class, consolidated or representative action. Customer and MA understand that by agreeing to this class action waiver, each may only bring a Dispute against one another in an individual capacity, not as a representative or member of a purported class, or as a Private Attorney General.

15. Governing Law. This Agreement, and any Dispute arising out of or related to this Agreement, shall be governed by the Federal Arbitration Act, applicable federal law, and the laws of the state of Minnesota, excluding its conflicts of law rules, regardless of Customer’s country of origin or where Customer accesses the Platform. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

16. Miscellaneous

16.1. Force Majeure. Neither party shall be liable in damages or have the right to terminate this Agreement for any delay or default in performing hereunder (except for failure to timely pay) if such delay or default is caused by conditions beyond its reasonable control including without limitation acts of God, government restrictions (including the denial or cancellation of any export or other necessary license), acts of terrorism, wars or insurrections.

16.2. Relationship of the Parties. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other party in any respect whatsoever.

16.3. Assignment. Customer may not assign or transfer this Agreement, in whole or in part, without MA’s prior written consent (not to be unreasonably withheld, conditioned or delayed). MA may freely transfer and assign this Agreement or any of its rights and obligations hereunder. Any assignment in contravention of this provision will be null and void. The parties’ rights and obligations under this Agreement will be binding on and will inure to the benefit of all permitted assignees and successors in interest.

16.4. Entire Agreement. This Agreement contains the entire agreement of the parties regarding the subject matter described herein, and all other promises, representations, understandings, arrangements and prior agreements related thereto are merged herein and superseded hereby (including any provision contained in any invoice, purchase order or other documentation that is different from or in addition to this Agreement).

16.5. Waiver. It is expressly understood that in the event either party on any occasion fails to perform any term hereof and the other party does not enforce that term, the failure to enforce on any occasion will not constitute a waiver of any term and will not prevent enforcement on any other occasion.

16.6. Notices. All notices, requests, demands and other communications hereunder will be in writing (including email). Any hard copies of such communications will be deemed to have been duly given on the next day if delivered personally or sent by express courier to such party. All notices will be sent to the following address:

If to Customer, to the email address provided upon registration for the MA Platform which Customer agrees to update in the event it changes its email address.

If to MA:

601 Carlson Parkway, Suite 110

Minneapolis MN 55305

Attn: Audiotising Legal

Such addresses may be changed by notice given by one party to the other pursuant to this Section.

17. Publicity and Marketing Materials. Customer agrees to participate in press announcements, case studies, trade shows, or other forms of publicity reasonably requested by MA. Notwithstanding anything to the contrary contained herein or any other previous agreements entered into by the parties, Customer agrees MA is permitted to disclose on its website or otherwise that Customer is one of its customers and Customer agrees to allow MA a limited right to use Customer’s logo and name on MA’s corporate website and in its marketing materials. Notwithstanding the foregoing, Customer may, at any time, email legal@audiotising.tv and provide MA with a written request that Customer would not like to participate in press announcements, case studies, trade shows, or other forms of publicity. Customer may also provide a written request that MA remove Customer’s logo or name from MA’s corporate website.

18. Severability. If any provision of this Agreement is invalid or unenforceable in any jurisdiction, the other provisions herein will remain in full force and effect in such jurisdiction and will be liberally construed to effectuate the purpose and intent of this Agreement, and the invalidity or unenforceability of any provision of this Agreement in any jurisdiction will not affect the validity or enforceability of any such provision in any other jurisdiction.

19. Survival. Provisions of this Agreement which are either expressed to survive its termination or which from their nature or context are contemplated to survive termination will remain in full force and effect notwithstanding termination of this Agreement.