® 2022 Supporting Cast
This Customer Agreement (this “Agreement”) is entered into upon transacting on the service www.supportingcast.fm (the “Effective Date”) by and between a purchaser of the service “Supporting Cast Internal Starter Tier” (“Customer”), and The Slate Group, LLC, a Delaware limited liability company (“Slate”).
Background
Customer is a producer and publisher of one or more podcasts. Slate has developed and makes available the Supporting Cast Platform (as defined below), a cloud-based platform that helps customers publish member-only and/or employee-only podcasts.
1. Certain Definitions
The following terms, when used in this Agreement will have the following meanings:
“Confidential Information” means any information or data disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure. However, “Confidential Information” will not include any information which (a) is in the public domain through no fault of receiving party; (b) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
2. Supporting Cast Platform
2.1 - Provision of Supporting Cast Platform. Subject to the terms and conditions of this Agreement Slate will use commercially reasonable efforts to make the Supporting Cast Platform available to Customer pursuant to this Agreement, and hereby grants Customer a non-exclusive right to access and use the Supporting Cast Platform to manage Customer Content and the audience to which it is available.
2.2 - Restrictions. The rights granted herein are subject to the following restrictions (the “License Restrictions”):
(A) Customer will not reverse engineer, decompile, disassemble, modify, create derivative works of or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive, the source code underlying the Supporting Cast Platform; and
(B) Customer will not use the Supporting Cast Platform in violation of any applicable law or regulation, this Agreement or outside the scope expressly permitted hereunder.
2.3 - Account Registration; Other Customer Responsibilities.
(A) To use the Supporting Cast Platform, Customer will be asked to create an account. As part of the account creation process, Customer may be asked to provide Customer’s email address and create a password. When registering an account, Customer must provide true, accurate, current and complete information about Customer and Customer’s membership offering as requested during the account creation process. Customer must also keep that information true, accurate, current and complete after Customer creates its account.
(B) Customer will (i) be responsible for all use of the Supporting Cast Platform and Documentation under Customer’s account, (ii) be solely responsible for the accuracy, quality, integrity and legality of Customer Content(s), (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Supporting Cast Platform and Documentation and notify Slate promptly of any such unauthorized access or use and (iv) be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Supporting Cast Platform, and content management system for publication of Customer’s Customer Content. Customer will be solely responsible for Customer’s failure to maintain such equipment, software and services.
(C) Customer is solely responsible for entering into an end user agreement with listeners of Customer Content and disclosing Customer’s privacy practices to them through a valid privacy policy (collectively, the “User Documents”), in each case in accordance with applicable law. Customer will comply with the User Documents, and ensure that the User Documents are consistent with this Agreement and provide Slate with all the rights necessary to exercise its rights and perform its obligations herein. Slate may make or share examples of standard end user license agreements with Customer; however, Customer agrees that any such examples do not constitute professional advice (and Customer should seek Customer’s own legal counsel), such examples are provided “as is”, without any representations, warranties or guarantees, and Customer’s use of such examples is at Customer’s own risk.
2.4 Accessibility of Customer Content.
Slate will use commercially reasonable efforts to ensure that Customer Content made available via the Supporting Cast Platform is not accessible by users who are not part of Customer’s designated audience. However, Customer recognizes that it may not be possible to identify individual users accessing Customer Content via third party podcasting players, and that a permitted user may share Customer Content or his or her access credentials with users outside the designated audience. Customer therefore acknowledges that Slate cannot guarantee that users outside the Customer’s designated audience will be completely prevented from accessing Customer Content.
3. Fees
3.1 - Fees. Customer agrees to pay Slate (a) a rate of ninety nine ($99) dollars per month for up to 500 Monthly Active Users. Slate will charge Customer for such amount monthly via Stripe.
3.2 - Fee Disputes. Customer must notify Slate in writing if Customer disputes any portion of any fees paid or payable by Customer under this Agreement. Customer must provide that written notice to Slate within ninety (90) days of the applicable charge and Slate will work with Customer to resolve the dispute promptly.
3.3 - Suspension. If Customer fails to pay any undisputed amounts due by Customer or Customer is otherwise in violation of this Agreement, Slate may suspend Customer’s account upon notice to Customer. Slate will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that Customer may incur in connection with any valid suspension of Customer’s account pursuant to this section. Customer account is not to exceed 500 active monthly listeners. Upon reaching the 500 active listeners limit, Customer will not be able to add more users.
3.4 - Net of Taxes. All applicable use, sales and other similar taxes and government charges will be payable by Customer. Customer will not withhold any taxes from any amounts due to Slate.
4. Proprietary Rights and Confidentiality
4.1- Slate’s Ownership Rights. As between the parties, Slate exclusively owns all right, title and interest in and to the Supporting Cast Platform. Except for the express rights granted hereunder, Slate reserves all rights, title and interests in and to the Supporting Cast Platform and Slate’s Confidential Information.
4.2 - Feedback. Customer may from time to time provide Slate suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the Supporting Cast Platform. Slate will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality. Slate will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.
4.3 - Customer Content. As between the parties, the Customer Content will be owned by Customer. Customer hereby grants to Slate a non-exclusive, worldwide license to copy, distribute and use Customer Content only in connection with providing the Supporting Cast Platform. Customer agrees that Slate may, but does not have any obligation to, remove any Customer Content that it believes may be in violation of the Agreement.
4.4 - Confidentiality. Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose, or permit to be disclosed, the same directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. However, either party may disclose Confidential Information to its employees, officers, directors, attorneys, auditors, financial advisors and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and as required by law (in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law. Neither party will disclose the terms of this Agreement to any third party, except that either party may confidentially disclose such terms to actual or potential lenders, investors or acquirers. Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section or the License Restrictions, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.
4.5 - System Information. Slate shall have the right to aggregate, collect and analyze data and other information relating to the provision, use and performance of the Supporting Cast Platform (collectively, “System Information”) and shall be free (during the term) to use such System Information to develop and improve the Supporting Cast Platform and other Slate offerings, and (b) disclose such System Information solely in an aggregated and anonymized format that does disclose Confidential Information and does not identify Customer or any individual.
5. Warranties and Disclaimers
5.1 - Slate. Slate warrants that it will, consistent with prevailing industry standards, provide the Supporting Cast Platform in a professional manner in accordance with the Documentation. For breach of the foregoing express warranty, Customer’s exclusive remedy shall be to discontinue use of the Supporting Cast Platform and terminate this Agreement.
5.2 - Customer. Customer warrants that Customer has the necessary rights, licenses, consents, permissions, waivers and releases to enter into this Agreement, and use, make available and distribute the Customer Content in connection with the Supporting Cast Platform as contemplated herein. Customer further warrants that, if Customer is an individual, Customer is above the age of 13.
5.3 - DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SUPPORTING CAST PLATFORM AND ANY BETA SERVICES (AS DEFINED BELOW) ARE PROVIDED “AS IS” TO THE FULLEST EXTENT PERMITTED BY LAW, AND SLATE HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, SLATE DOES NOT WARRANT THAT THE SUPPORTING CAST PLATFORM OR BETA SERVICES WILL BE ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTIONS OR DOWNTIME. TO THE EXTENT THIS DISCLAIMER CONFLICTS WITH APPLICABLE LAW, THE SCOPE AND DURATION OF ANY APPLICABLE WARRANTY WILL BE THE MINIMUM PERMITTED UNDER THAT LAW.
5.4 - BETA SERVICES. FROM TIME TO TIME, CUSTOMER MAY HAVE THE OPTION TO PARTICIPATE IN A PROGRAM WITH SLATE WHERE CUSTOMER GETS TO USE ALPHA OR BETA SERVICES, PRODUCTS, FEATURES OR DOCUMENTATION (COLLECTIVELY, “BETA SERVICES”) OFFERED BY SLATE. PARTICIPATION IN BETA SERVICES IS ENTIRELY VOLUNTARY. THESE BETA SERVICES ARE NOT GENERALLY AVAILABLE AND MAY CONTAIN BUGS, ERRORS, OR DEFECTS. CUSTOMER OR SLATE MAY TERMINATE ACCESS TO THE BETA SERVICES AT ANY TIME.
6. Indemnification
6.1 - Slate. Slate will defend Customer against any claim, demand, suit, or proceeding (“Claim”) made or brought against Customer by a third party alleging that the use of the Supporting Cast Platform as permitted hereunder infringes any third party intellectual property including any patent, trademark or copyright, and will indemnify Customer for any damages finally awarded against (or any settlement approved by Slate) Customer in connection with any such Claim. The foregoing obligations do not apply (a) with respect to the Supporting Cast Platform or portions or components thereof that are: (1) not provided by Slate, (2) made in accordance to Customer specifications, or (3) combined with other products, services, processes or materials not provided by Slate where the alleged infringement would not have occurred without such combination, or (b) to Customer Content (collectively, the “Excluded Claims”). If the use of the Supporting Cast Platform by Customer has become, or in Slate’s opinion is likely to become, the subject of any claim of infringement, Slate may at its option and expense (i) procure for Customer the right to continue using the Supporting Cast Platform as set forth hereunder; (ii) replace or modify the relevant portion of the Supporting Cast Platform to make it non-infringing (with comparable functionality); or (iii) if the options in clauses (i) or (ii) are not reasonably practicable, terminate this Agreement and reimburse Customer for any amount paid under the Agreement and any additional damages incurred by Customer.
6.2 - Customer. Customer will defend Slate against any Claim made or brought against Slate by a third party arising out of Customer’s Content or any breach of the License Restrictions, and Customer will indemnify Slate for any damages finally awarded against (or any settlement approved by Customer) Slate in connection with any such Claim.
6.3 - Procedure. Each party's indemnification obligations are conditioned upon the indemnified party: (a) promptly notifying the indemnifying party of any claim in writing; and (b) cooperating with the indemnifying party in the defense of any claim. The indemnified party shall have the right to participate in the defense of any third party claim with counsel selected by it subject to the indemnifying party's right to control the defense thereof. The fees and disbursements of such counsel shall be at the expense of the indemnified party. Notwithstanding any other provision of this Agreement, the indemnifying party shall not enter into settlement of any third party claim without the prior written consent of the indemnified party, which shall not be unreasonably withheld.
7. Limitation of Liability
UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST CONTENT OR DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF A REPRESENTATIVE OF SUCH PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
8. Termination and Suspension
8.1 - Term. The term of this Agreement will commence on the Effective Date and continue for one month (the “Initial Term”). Thereafter, this Agreement will automatically renew for successive monthly periods (collectively the “Term”), unless the Agreement is terminated in accordance with the provision below
8.2 - Termination. Customer may cancel their monthly subscription at any point. Customer will thereafter retain access to the platform until the end of the then current month of the Term. Each party may terminate this Agreement upon written notice in the event (a) the other party commits any material breach of this Agreement and fails to remedy such breach within thirty (30) days after written notice of such breach or (b) subject to applicable law, upon the other party’s liquidation, commencement of dissolution proceedings or assignment of substantially all its assets for the benefit of creditors, or if the other party become the subject of bankruptcy or similar proceeding that is not dismissed within sixty (60) days.
8.3 - Survival. Upon termination of this Agreement all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such termination will survive, including the License Restrictions and terms and conditions relating to proprietary rights and confidentiality, System Information, disclaimers, indemnification, limitations of liability and termination and the general provisions below.
9. General
9.1 - Assignment; Delegation. Neither party hereto may assign or otherwise transfer this Agreement, in whole or in part, without the other party’s prior written consent, except that either party may assign this Agreement with prior written notice but without consent required to a successor to all or substantially all of its assets or business related to this Agreement. Any attempted assignment, delegation, or transfer by either party in violation hereof will be null and void. Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns.
9.2 - Amendment; Waiver. No amendment or modification to this Agreement, nor any waiver of any rights hereunder, will be effective unless assented to in writing signed by both parties. Any such waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
9.3 - Relationship. Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.
9.4 - Unenforceability. If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms.
9.5 - Governing Law. This Agreement will be governed by the laws of the State of New York, exclusive of its rules governing choice of law and conflict of laws, and all disputes arising out of the Agreement will be subject to the exclusive jurisdiction and venue of the local and federal courts of the District of Columbia, and the parties hereby consent to the personal jurisdiction of these courts. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
9.6 - Notices. Any notice required or permitted to be given hereunder will be given in writing by electronic mail. Notices to Customer must be sent to Customer’s email address as provided during the initial transaction. Notices to Slate must be sent to the following address: The Slate Group LLC, 15 MetroTech Center, 8th Floor, Brooklyn, N.Y., 11201, Attn: Legal (Legal@slate.com).
9.7 - Entire Agreement. This Agreement comprises the entire agreement between Customer and Slate with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written). No oral or written information or advice given by Slate, its agents or employees will create a warranty.
9.8 - Force Majeure. Neither party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control (“Force Majeure Event”), including earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), or any change in or the adoption of any law, regulation, judgment or decree.
9.9 - Interpretation. For purposes hereof, “including” means “including without limitation”.