Last Updated: May 24, 2018

IMPORTANT – READ CAREFULLY: This SAM Broadcaster Cloud User Agreement (the “Agreement”) is a legal contract between you (either an individual, a company or other legal entity, hereinafter referred to as “You” or “Your”) and Spacial Audio Solutions, LLC (“Spacial”) with regards to the permission to use and access the Services (as defined below). By indicating Your acceptance of this Agreement and/or by using the Services, You agree to be bound by the terms and conditions of this Agreement which shall take effect the earlier of (a) the moment of Your acceptance of this Agreement or (b) the moment You commence the use of the Services (the “Effective Date”). If You do not agree to the terms of this Agreement, You may not use any of the Services.

1. Definitions

In this Agreement:

“End-User” means any and all of Your customers, visitors, listeners or viewers listening to or viewing Your Content made available using the Service(s) or whereas applicable with Your applications using the Services.

“Network” means any and all computer equipment, server, network equipment, network interconnection, other network devices or points of presence.

“SAM Broadcaster Cloud” means Spacial’s cloud Internet radio broadcasting solution.

“Services” means any and all of the products and services ordered or used by You and provided by Spacial hereunder, including SAM Broadcaster Cloud.

“Third Party Software” means software and/or services that are proprietary to third parties.

“Website” means spacial.com.

“Your Content” means any and all media properties, information, log files, data, files, images, videos or content of any type that You or Your End-Users post, store, transit, or display on Spacial’s Network.

“Your Sites” means any and all of Your website, mobile application or other property on which Your Content is distributed.

2. Services

2.1. Spacial grants you a limited, non-assignable, non-transferable, non-exclusive, fee bearing, worldwide right to use the Services and any related software and technical documentation supplied or made available by Spacial in connection with the Services, solely for Your own personal non-commercial use. Should You want to use such right for a commercial purpose, You must obtain a prior written authorization from Spacial before doing so. If You are using SAM Broadcaster for Second Life, you may not use such right outside the virtual world of the website secondlife.com.

3. Your Obligations

3.1. You shall be solely responsible for the use of the Services and of Spacial’s Network by You, End-User or any other person or entity You permit to access the Services or Spacial’s Network, and shall take all reasonable measures required to ensure that such persons use the Services or Spacial’s Network in accordance with the terms and conditions of this Agreement. You shall be solely responsible for any and all media property, information, data, log file, file, image, video or any other type of content of any type or form that is posted, stored or displayed on Spacial’s Network. Shall Your Content originate in whole or in part from Your’ End-Users, You shall enter into an agreement with each of such End-User sufficient to comply with the terms herein.

3.2. You agree to use the Services in compliance with the terms of this Agreement and with all other laws applicable in Your jurisdiction and any other jurisdictions in which You use the Services. Without limiting the generality of the foregoing, You agree not to:

1. alter, modify or change in any respect, or create any derivative work based on, the Services;
2. use the Services to transport and stream any third party media including, without limitation, a radio or television stream;
3. integrate an ad injector service into the Service(s) without the express permission of Spacial;
4. use the Services in a manner that infringes, violates or misappropriates the rights of any third party or that violates any applicable local, state, national or international laws;
5. use the Services to engage in spamming or other impermissible advertising, marketing or other activities, including, without limitation, any activities that violate anti-spamming laws and regulations;
6. use the Services to disseminate or cause the dissemination of viruses, Trojan horses, worms, time bombs, bots, or other disabling devices or other harmful components intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information;
7. use the Services in a manner that is otherwise illegal or promotes illegal activities, including, without limitation in a manner that might be libelous or defamatory, discriminatory, or otherwise malicious or harmful to any person or entity;
8. violate or tamper with the system or security of Spacial’s Network. Examples of system or security violations include, without limitation, the following: (i) unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network; (ii) unauthorized monitoring of data or traffic on any network or system without express authorization of the owner of the system or network; (iii) interference with service to any user, host or network including, without limitation, mailbombing, flooding, deliberate attempts to overload a system and broadcast attacks; and (iv) forging of any TCP-IP packet header or any part of the header information in an email or a newsgroup posting. Spacial will investigate incidents involving such violations and may involve and will cooperate with law enforcement if a criminal violation is suspected.

3.3. Complaints regarding illegal use of the Services and Spacial’s Network or any relating issue should be sent to complaints@tritondigital.com.

4. Your Content

4.1. Your Content and Your Sites shall at all time comply with applicable laws, rules and regulations and with the terms of this Agreement. Without limiting the generality of the foregoing, Your Content and Your Sites shall not contain material that:

1. infringes the intellectual property rights of others or is pirated material (including but not limited to unauthorized copies, public performances or derivative versions of software, films, television programs, music, books, electronic games or other categories of protected works);
2. induces, facilitates, promotes or enables financial benefit from such infringement (e.g. P2P/BitTorrent/MP3 tracking and indexing sites, “linking” or “leeching” sites, ROMs, “warez”, emulators, hacks, “phreaks,” “cracks,” or ripping software for illegally circumventing DRM or other copy protection devices);
3. promotes or facilitates illegal activities, deceptive practices or violations of the privacy rights of others;
4. promotes or facilitates activities generally regarded as Internet abuse, including but not limited to, the use or delivery of viruses, Spyware or other malware; or
5. relates to violence, sex, profanity, racism, sexism, religion, gambling, pornography, abortion, or any other highly explosive subject matter or subject matter which reflects negatively on Spacial.

4.2. You shall (i) holds the requisite intellectual property rights for all your Content; (ii) the rights delegated to Spacial under this Agreement, including the public display, public performance, distribution, and reproduction of your Content on Spacial’s network and other property, will not violate or infringe upon the intellectual property rights, privacy, literary and publicity rights or any other personal or property right of any person or entity; and (iii) you have fulfilled all obligations you may have to artists, guilds, authors, composers and/or any other parties in connection with the creation, display, reproduction, distribution or other use of Your Content.

4.3. You acknowledge that Spacial is not responsible for and does not control Your Content, its availability, accuracy or any other aspect of it. You further acknowledge that Spacial does not monitor the use of the Service(s) by You or Your End-Users.

4.4. You assume full responsibility for Your Content submitted to Spacial for distribution, storage, transcoding services and/or straight posting to its servers. Notwithstanding the fact that Spacial assumes no responsibility with respect to Your Content, Spacial may modify or suspend Your Service(s) in the event of illegal use of the Service(s) or as necessary to comply with any law or regulation, as reasonably determined by Spacial. Upon advances notice to You via email or facsimile, Spacial reserves the right to suspend the Service(s) based on Your unremediated failure to comply with the terms of this Agreement, which suspension may be immediate and may have a fixed or indefinite duration, but Spacial shall promptly restore Services upon the remediation of any breach, in compliance with any applicable laws or regulations.

5. Ownership and Copyright

5.1. The Service is protected by copyright laws throughout the World in accordance with international treaty provisions. Spacial or its suppliers own the copyright, title, and all intellectual property rights found in the Service. Except as expressly stated in this Agreement, nothing in this Agreement shall be considered to be granting You any intellectual property rights in the Service. In addition You have no right to make use of the product names, trade-names or trademarks of Spacial without the express consent of Spacial. Except as provided in this Agreement, none of the Service may be modified, copied, distributed, framed, reproduced, downloaded, displayed, transmitted, or posted in any form, or by any means without the express written consent of Spacial.

6. Account Registration and Subscription

6.1. All Services must be managed by You within the user section found on the Website. To become a user, You must register by completing the user registration form found on the Website. You are responsible for maintaining the confidentiality of Your login and password information.

6.2. With regards to registration and account information, You represent and warrant that:

1. the information provided and factual assertions made to Spacial are accurate and complete;
2. the contact information provided is up to date and accurate and allows Spacial to communicate with You in a timely manner as required;
3. if You are an individual, You are of the age of majority in your country and have the legal capacity to enter into this Agreement; and
4. if You are an entity or organization,
   
   1. Your entity or organization is duly authorized to do business in the country or countries where it operates;
   2. the individual accepting the Agreement meets the requirements of subsection c. above and is an authorized representative of Your entity or organization; and
   3. Your entity or organization’s employees, officers, representatives and other agents accessing the Service are duly authorized to do so and to legally bind You to this Agreement and to all transactions conducted under Your account.

7. Technical Requirements

7.1. You acknowledge and agree that certain basic requirements are necessary for You to make use of the Service. You must have a computer with internet access, a web browser (the latest versions of Firefox, Microsoft Internet Explorer or Google Chrome are recommended), and the Flash Media Player (which can be downloaded free of charge here: https://get.adobe.com/flashplayer/). Spacial is in no way responsible for Your hardware or software incompatibility to network elements that are not under the control of Spacial.

8. Third Party Software

8.1. The Service may include Third Party Software. The providers of Third Party Software are express third party beneficiaries under this Agreement, with a right to enforce the terms of this Agreement against You. The providers of Third Party Software make no representation or warranty to You. You acknowledge and agree that Your use of Third Party Software is subject to terms and conditions issued by the providers of such Third Party Software and You hereby agree to be bound by those terms and conditions.

9. Privacy

9.1. Under all applicable regulations, you have:

• the right to request access to, deletion of or correction of, your personal data held by Spacial;
• the right to complain to a supervisory authority;
• be informed of what data processing is taking place;
• the right to restrict processing;
• the right to data portability;
• object to the processing of your personal data;
• rights with respect to automated decision-making and profiling.

To enforce any of the foregoing rights or if you have any other questions, see our this Privacy Policy.

10. Storage of Your Content

10.1. You acknowledge and agree that although Spacial will make all best efforts to securely store Your Content as required for use of the Service, all of Your Content is stored by Spacial at your own risk and Spacial assumes no responsibility for any loss, damage, or corruption to Your Content. In addition, Spacial does not backup Your Content, the backup of which is Your sole responsibility.

11. Ordering of Services and Service Fees

11.1. You may order the Service through Your user account on the Website. Fees for the SAM Broadcaster Cloud Services are defined on the Web Site. Fees are subject to change and may be updated by giving You thirty (30) days notice via the email address indicated in Your account information. You will begin receiving your Services on the date of initiation of Services.

1. Monthly subscriptions: Fees for your Services are invoiced and charged on the date of initiation of Services and subsequently invoiced and charged each month unless service is cancelled per Section 14.1. For the purposes of monthly subscriptions, a month is defined as a 28 to 31-day period that starts on the date of initiation of service (for example, March 3, 2015, through April 2, 2015).
2. Yearly subscriptions: Fees for Your Services are invoiced and charged on the date of initiation of Services. For the purposes of yearly subscriptions, a year is defined as a 365-day-period starting on the date of initiation of Services.

12. Support

12.1. The Spacial support center staff is available during regular business hours (Monday-Friday, from 4:00a-4:00p CST), which may change from time to time, to provide technical support regarding issues directly related to the availability and functionality of the Service. You may contact the support center by creating a support ticket online at https://support.spacial.com. You must provide Your basic account information and adequate details of Your technical issue in order to receive support, failing which response and/or resolution may be delayed. The Spacial support center staff will do all necessary effort to answer Your query within two (2) business days. Spacial’s failure to answer Your query within two (2) business days shall not constitute a breach of the Agreement. You acknowledge and agree that Spacial’s responsibility is limited to software, hardware, and network elements under Spacial’s control and directly related to the availability and functionality of Spacial’s Services. You further acknowledge and agree that, while the Spacial support center aims to help clients as much as possible, Spacial will not provide generic computer, Internet, or website advice nor will Spacial provide support for elements that are ordinarily Your responsibility or the responsibility of Your Internet service provider or for issues related to End-User applications. Furthermore, Spacial reserves the right to refuse to provide support in case of disrespectful behaviour toward Spacial’ staff, which shall give Spacial the right to terminate the Agreement pursuant to Section 16.1.

13. System Maintenance and Service Disruption

13.1. Spacial will post maintenance notices on https://spacial.statuspage.io/. Spacial will make all best efforts to avoid any disruptions to Your Services during regular system maintenance. It is however possible that you may experience a Service disruption as a result of regular or immediate maintenance issues, system failure, security issues (i.e. denial of service or port attack), or for reasons outside of Spacial’s control. Spacial assumes no responsibility for any damages or inconveniences that may result from any Service disruptions.

14. Renewal and Cancellation of Services

14.1. Where You have purchased a monthly subscription to the Services as detailed in Section 11.1a, such subscription shall be automatically renewed at the end of the monthly subscription period. Should you wish to cancel your monthly subscription, You must advise Spacial through Your member account.

14.2. Where You have purchased a yearly subscription to the Services as detailed in Section 11.1b, you will receive an email notification thirty (30) days before the expiration of your subscription so that you may renew Your subscription or cancel Your Service should You so choose; should You fail to respond to this 30-day notice, Your subscription will automatically be renewed for a period of one year. Should You wish to cancel Your subscription or convert to a monthly subscription at the end of Your yearly subscription, You must advise Spacial through Your user account.

15. No Credit or Refund

When You cancel Your subscription pursuant to Section 14.2, no credit or refund will be issued to You however Your Service will remain active until the end of the subscription period in which You cancelled Your Service.

16. Breach of the Agreement and Termination of License

16.1. Without prejudice to any of Spacial’s other rights, Spacial may suspend or terminate Your account and access to Your Service immediately and without notice if You fail to comply with any of the terms and conditions of this Agreement. In the event of the termination of this Service (by either You or Spacial), You agree to immediately cease using the Services. Following the termination of this Agreement, any further use of the Service will be an infringement of Spacial’s copyrights and intellectual property rights.

16.2. In addition, Spacial may terminate Your access to the Service and Your account with Spacial for any reason whatsoever in which case notice will be sent to You thirty (30) days prior to such termination via the email address indicated by You in Your account information.

17. Limitation of Liability

17.1. You acknowledge and agree that Your use of the Service is “as-is” and Spacial does not make, and hereby disclaims, any and all other express and implied warranties, including but not limited to warranties of merchantability or fitness for a particular purpose. Spacial shall not be liable for any direct damages to You or to any other third party, whether out of contract or from tort. Spacial shall not be liable for any indirect, special, consequential, punitive, exemplary, aggravated, economical or other similar damages suffered by You relating to the Service, howsoever caused, or for any lost profits, lost information, lost data, lost of opportunities or gains, business interruption, or the use or inability to use the Service; and irrespective of whether the party from which damages are being sought, had been advised of, had knowledge of, or reasonably could have foreseen the possibility of such damages. Spacial’s cumulative liability to You shall not exceed the fees paid by You to Spacial in connection with Your use of the Service under this Agreement in the twelve (12) months preceding the event giving rise to a claim by You. Certain jurisdictions limit disclaimers of warranties and limitations of damages. In any such jurisdiction, this limitation of liability shall be deemed amended solely to the extent necessary to comply with the laws of such jurisdiction.

18. Indemnification by You

18.1. You agree to indemnify and hold harmless Spacial and their respective officers, directors, employees, agents, and contractors from and against any claims, actions, suits, damages, liabilities, costs, and expenses (including reasonable legal expenses) arising from a claim arising from Your violation of any terms and conditions of this Agreement, including, but not limited to, any action by any third party that you have violated the proprietary rights of that third party, or caused any damage to that third party, in the course of Your use of the Service. This indemnification obligation shall not apply in the event of any claim and/or actions by a third party that the Service itself has violated the proprietary rights of that third party, or caused any damage to that third party.

19. Severability of Terms

19.1. If any of the terms in this Agreement are found to be unlawful, void, or for any reason unenforceable, then such provision(s) shall be deemed severable from the other the terms of this Agreement and shall have no affect on the validity of the remaining terms.

20. Non-Waiver of Rights

20.1. The failure of either party to this Agreement to insist on or enforce the strict performance of the other party’s obligations with respect to any of the terms of this Agreement, or to exercise any rights found herein, will not be construed as a waiver or diminishment of such party’s right to assert or rely upon any such provision or right in any other instance, and same will remain in full force and effect.

21. Governing Law

21.1. All matters relating to this Agreement and use of the Service shall be governed by the laws of the Province of Quebec and the federal laws of Canada. You therefore agree to the courts of Quebec and Canada having legal jurisdiction. You also agree that You are fully responsible for complying with all of Your local laws.

22. Modification of the Agreement

22.1. Spacial reserves the right to modify this Agreement at any time by posting a revised version on https://samcloud.spacial.com. By continuing to use the Web Site and/or Services after the effective date of any revisions to this Agreement, you shall be deemed to have accepted the revised Agreement and shall be bound by its terms and conditions.