Terms and Conditions
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Terms of Service

Introduction

 

Thank you for choosing SoundGTM, Inc. (“SoundGTM”) for your business.  SoundGTM provides a B2B platform for businesses (“Company” or “Companies”) to manage and pay Referral Partners (“Partners”) to fulfill offers (e.g., lead generation, signups, and purchases) and connect with SoundGTM Communities (“Communities”), pursuant to the terms of Addendum 1 attached hereto.  SoundGTM refers to the foregoing products and/or services herein collectively as “Services.”

 

These Terms of Service and Addendum 1 attached hereto (“Agreement,” or “Terms of Service”) apply to: (1) any and all visitors (“Visitors”) to our websites located at https://www.soundgtm.com and https://www.soundgtm.ai (“Website”); (2) to Companies who connect with Partners and/or Communities; (3) to Partners who connect with Companies; and (4) to Communities who give SoundGTM access to their members.  Companies, Partners, and Communities and any agents, employees, or members of the same, are herein collectively referred to as “you” in this Terms of Service.  For reference, Addendum 1 is the Referral Partner Terms between SoundGTM and its Referral Partners and Customers.  

 

When you use our Services as a Company, Partner, or Community, you are agreeing to our terms, so please carefully read the: (1) Terms of Service, (2) Addendum 1 attached hereto, and (3) the Privacy Policy, incorporated herein, as these documents contain important information regarding your legal rights and obligations.  

 

Agreement

 

THIS DOCUMENT, THE TERMS OF SERVICE AND ADDENDUM 1 ATTACHED HERETO, IS A LEGAL AGREEMENT BETWEEN SOUNDGTM AND YOU WHICH GOVERNS YOUR USE OF THE SERVICES AND THE WEBSITE.  YOUR USE OF THE SERVICES AND THE WEBSITE CONSTITUTES YOUR ACCEPTANCE OF AND AGREEMENT TO ALL OF THE TERMS AND CONDITIONS IN THESE TERMS OF SERVICE, ADDENDUM 1 ATTACHED HERETO, AS RELEVANT TO PARTNERS AND COMMUNITIES, AND THE PRIVACY POLICY INCORPORATED HEREIN; AND YOUR REPRESENTATION THAT YOU ARE AT LEAST 16 YEARS OF AGE OR OLDER.  

 

IF YOU OBJECT TO ANYTHING IN THESE TERMS OF SERVICE AND ADDENDUM 1, YOU ARE NOT PERMITTED TO USE THE SERVICES.  If you accept these Terms of Service and use the Services on behalf of a company, organization, or other legal entity, you represent and warrant to SoundGTM that you have full power and authority to do so.  

 

Effective Date.   This Agreement is effective (“Effective Date”) on the date you first access or use the Services and/or the Website, whichever is earlier.

  • For Visitors, as that term is defined above, this Agreement is effective as of the first date you visit the Website. 

  • For Companies, as that term is defined above, this Agreement is effective as of the first date you access our online platform to create a Company account.

  • For Referral Partners, as that term is defined in Addendum 1 attached hereto, the attached Referral Partner Addendum at Addendum 1 is effective on the execution date of the Order Form or the first date you access our online platform to create a Partner account, whichever is earlier. 

  • For Communities, this Agreement is effective on the execution date of the Community Agreement or the first date you access our online platform to create a Community account, whichever is earlier. 

 

Fees   

 

Company Fees.  Upon notice to you, SoundGTM may increase any fees specified in connection with its Services.  Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”).  You are responsible for paying all Taxes associated with purchases and transactions under this Agreement.  

 

You may pay by credit card by way of SoundGTM’s third-party payment processor, Stripe, Inc.   You agree not to file a credit or debit card chargeback with regard to any amount of fees charged in connection with the Services.  Instead, you agree to abide by the dispute resolution procedures outlined herein, below.

Fees/Payment Processing.   Users of the Website and/or Services will be required to provide their credit card or bank account details to SoundGTM or its designated third-party payment processor(s) (“Third-Party Payment Processors”), Stripe, Inc., to process payment(s).  SoundGTM collects, analyzes and relays information to allow the Third-Party Payment Processors to process these payment(s).  

 

You authorize us to process payment(s) for the Services, using the payment information you have supplied.  Specifically, you will be required to provide your credit card or bank account details to SoundGTM and/or the Third-Party Payment Processors, and/or register with the Third-Party Payment Processors to process payment(s) for the Services.  You agree to provide SoundGTM and/or the Third-Party Payment Processors with accurate and complete information about you and/or your business; and you authorize SoundGTM to share it and any transaction information related to your use of the Services and/or Website with the Third-Party Payment Processors for the purpose of processing payment(s), including but not limited to the service fees owed to Company for the use of the Service.  

 

SoundGTM reserves the right, in its sole discretion (but not the obligation), to: (i) place on hold any payment and out of pocket expenses; and/or (ii) refund, provide credits or arrange for the Third-Party Payment Processors to do so, as necessary.  

 

If you believe a payment has been processed in error, you must provide written notice to SoundGTM within thirty (30) days after the date of payment specifying the nature of the error and the amount in dispute.  If notice is not received by SoundGTM within such a thirty (30) day period, the payment will be deemed final and valid.

 

SoundGTM is not liable for any losses relating to chargebacks, fraudulent charges, or other actions by any User that are deceptive, fraudulent or otherwise invalid.  By using the Services, you hereby release SoundGTM from any liability arising from fraudulent actions. You will also use best efforts to promptly notify SoundGTM of any fraudulent actions which may affect the Services.  SoundGTM reserves the right, in its sole discretion, to terminate the account of any User that engages in, or enables any other User to engage in, fraudulent actions.

 

While SoundGTM takes what it believes to be reasonable efforts to ensure secure transmission of your information to the Third-Party Payment Processors that assesses and processes payment(s), SoundGTM is not responsible for any fees or charges assessed by third party service providers, or any errors in the processing of payment(s) by third party service providers, including any errors that result from third-party negligence, improper transmission of payment information, your mistaken submission of payment information, or your submission of erroneous payment information.  Your sole recourse is with the Third-Party Payment Processors which processed the payment(s).

 

You herein agree that you have read and agreed to the Privacy Policies and Terms of Service of the Third-Party Payment Processors linked here and below:

 

Account.   

 

Company, Partner, or Community Account.  By creating an online account with SoundGTM on its Website ("Account"), you are granted a right to use the Services provided by SoundGTM subject to the restrictions set forth in these Terms of Service, Addendum to the same, and the Privacy Policy, incorporated by reference herein.  

 

Whether you are a Company, Partner, or Community, our Account registration process will ask you for information including your name, email and or physical address, phone number, etc. (hereinafter, collectively referred to as “Personal Information,” as previously defined in our Privacy Policy).  By registering for an Account, you warrant you are over the age of 16, and further agree to provide true, accurate, current and complete information about yourself as prompted by the registration process.  You further agree that you will not knowingly omit or misrepresent any material facts or information, and that you will promptly enter corrected or updated information in your Account, or notify us in writing regarding your corrected or updated information.  

 

We may verify your provided information, as required for your use of and access to the Services.  You agree to maintain your Account solely for your own use.  You agree that you will not allow another person to use your Account.  We reserve the right to suspend or terminate the Account of any User who provides inaccurate, untrue, or incomplete information, or who fails to comply with the account registration requirements.

 

You are solely and entirely responsible for maintaining the confidentiality of your Account, and for any charges, damages, liabilities or losses incurred or suffered as a result of your failure to do so.  Furthermore, you are solely and entirely responsible for any and all activities that occur under your Account, including any charges incurred relating to the Services. 

 

SoundGTM is not liable for any harm caused by or related to the theft of your Account, your disclosure of your Account, or your authorization to allow another person to access or use the Services using your Account.  You agree to immediately notify us of any unauthorized use of your Account or any other breach of security known to you.  You acknowledge that the complete privacy of your data and messages transmitted while using the Services and/or the Website cannot be guaranteed in the event of breach.

 

Personal Information.   As outlined in SoundGTM’s Privacy Policy, incorporated herein, we will protect your Personal Information and disclose it only in a limited number of circumstances.  We have implemented measures designed to secure your Personal Information from accidental loss and from unauthorized access, use, alteration, or disclosure.  However, we cannot guarantee that unauthorized third parties will never be able to thwart those measures, or use your Personal Information for improper purposes.  You acknowledge that you provide your Personal Information at your own risk.

 

Links to Third-Party Accounts.   As part of the functionality of the Services, and pursuant to our Privacy Policy, which is incorporated herein, we offer you the option to link your Account with online accounts you may have with third parties such as Google. (collectively, "Third Party Account") by either: (i) providing your Third Party Account login information through the Services; or (ii) allowing SoundGTM to access your Third Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third Party Account. 

 

You represent that you own and are entitled to disclose your Third Party Account login information to SoundGTM and/or grant SoundGTM access to your Third Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Third Party Account.  SoundGTM will not pay any fees or be subject to any usage limitations imposed by such third party service providers. 

 

By granting SoundGTM access to any Third Party Accounts, you understand that (i) SoundGTM may access, make available and store (if applicable) any content that you have provided to and stored in your Third Party Account (the "SNS Content") so that it is available on and through the Services via your Account, including without limitation any friend lists, and (ii) SoundGTM may submit and receive additional information to your Third Party Account to the extent you are notified when you link your Account with the Third Party Account.  Please note that if a Third Party Account or associated service becomes unavailable or SoundGTM’s access to such Third Party Account is terminated by the third party service provider, then SNS Content may no longer be available on and through the Services. 

 

Depending on the Third Party Accounts you choose to link with the Website, and subject to the privacy settings that you have set in the Third Party Accounts, personally identifiable information that you post to your Third Party Accounts may be available on and through your Account on the Website.  Depending on your privacy settings, SoundGTM may access your contacts associated with a Third Party Account, solely for the purposes of identifying and informing you of those contacts who have also registered to use the Services and/or Website, unless you expressly tell us not to do so in writing.

 

Finally, you will have the ability to disable the connection between your Account and your Third Party Accounts at any time.  PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD PARTY SERVICE PROVIDERS.  SoundGTM makes no effort to review SNS Content by any Third Party Accounts for any purpose, including but not limited to, for accuracy, legality or non-infringement, and SoundGTM is not responsible for any SNS Content by Third Party Accounts.

 

Prohibited Uses. You may use the Services and/or Website only for lawful purposes and in accordance with these Terms of Services. You agree not to use the Services and/or Website:

 

  • Access or use the content in order to build a similar or competitive service or product.

  • In any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries). 

  • To engage in any other conduct that restricts or inhibits anyone's use or enjoyment of the Services and/or Website, or which, as determined by us, may harm SoundGTM or users of the Services and/or Website, or expose them to liability.

  • Use the Services and/or Website in any manner that could disable, overburden, damage, or impair the site or interfere with any other party's use of the Website, including their ability to engage in real time activities through the Website.

  • Use any robot, spider, or other automatic device, process, or means to access the Services and/or Website for any purpose, including monitoring or copying any of the material on the Website.

  • Use any manual process to monitor or copy any of the material on the Services and/or Website, or for any other purpose not expressly authorized in these Terms of Services, without our prior written consent.

  • Use any device, software, or routine that interferes with the proper working of the Services and/or Website.

  • Introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.

  • Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Website, the server on which the Website is stored, or any server, computer, or database connected to the Services and/or Website. 

  • Attack the Services and/or Website via a denial-of-service attack or a distributed denial-of-service attack.

  • Otherwise attempt to interfere with the proper working of the Website.

 

Termination.   SoundGTM reserves the right, in its sole discretion, to terminate your Account if you violate these Terms of Service, Addendum attached hereto, Privacy Policy, or for any reason or no reason at any time.  We may also suspend your access to the Services and/or Website, and your Account if you: (a) have violated the terms of these Terms of Service, any other agreement you have with SoundGTM; (b) pose an unacceptable credit or fraud risk to us or Users; (c) provide any false, incomplete, inaccurate, or misleading information or otherwise engage in fraudulent or illegal conduct; or (d) for any other reason in SoundGTM’s sole discretion.

 

If your Account is terminated or suspended for any reason or no reason, you agree: (a) to continue to be bound by these Terms of Service; (b) to immediately stop using the Services, (c) that any licenses granted to you under these Terms of Service shall end; (d) that we reserve the right (but have no obligation) to hide or delete all of your information and account data stored on our servers, in accordance with the Privacy Policy; and (e) that SoundGTM shall not be liable to you or any third party for termination or suspension of access to the Services or for deletion or hiding of your information or account data.  You agree that SoundGTM may retain and use your information and account data as needed to comply with investigations and applicable law, and as indicated in SoundGTM’s Privacy Policy.

 

However, we will not be liable to you for compensation, reimbursement, or damages in connection with your use of the Services, or in connection with any termination or suspension of the Services.  Any termination of these Terms of Service does not relieve you of any obligations to pay any Fees or costs accrued prior to the termination and any other amounts owed by you to us, as provided in these Terms of Service and Addendum attached hereto.

 

Links, Generally

 

Links to Other Websites.   As described in the Privacy Policy, incorporated herein, the Services may contain links to third-party websites, such as but not limited to Facebook, Instagram, TikTok, LinkedIn, and X or Twitter that are not owned or controlled by SoundGTM.  SoundGTM has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third-party websites.  In addition, SoundGTM will not and cannot censor or edit the content of any third-party site.  By using the Services, you expressly relieve SoundGTM from any and all liability arising from your use of any third-party website that is referenced or linked on our Website.

 

Links to this Website.   We grant you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to create hyperlinks to the Website and/or Services, so long as: (a) the links only incorporate text, and do not use any trademarks, (b) the links and the content on your website do not suggest any affiliation with SoundGTM or cause any other confusion, and (c) the links and the content on your website do not portray SoundGTM or its products or Services in a false, misleading, derogatory, or otherwise offensive matter, and do not contain content that is unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third party or are otherwise objectionable to SoundGTM.  SoundGTM reserves the right to suspend or prohibit linking to the Website and/or Services for any reason, in its sole discretion, without advance notice or any liability of any kind to you or any third party.

 

Intellectual Property of SoundGTM

 

Intellectual Property Rights.   As discussed in SoundGTM’s Privacy Policy, incorporated herein, SoundGTM owns all right, title and interest in and to the Services, SoundGTM data and Aggregated Data, including, without limitation, all intellectual property rights therein.  Subject to the limited rights expressly granted to you under this Agreement and the Privacy Policy, SoundGTM reserves all rights, title and interest in and to the Services, SoundGTM data and Aggregated Data, including, without limitation, all related intellectual property rights.  SoundGTM’s service marks, logos and product and service names are owned by SoundGTM. You agree not to display or use any of SoundGTM marks in any manner without SoundGTM’s express prior written permission.  

 

In addition, any trademarks, service marks and logos associated with a third party offering may be the property of the third-party provider, and you should consult with their trademark guidelines before using any of their marks.

 

Any information and data that you submit to the Website or in connection with the Services must not violate the intellectual property rights of third parties.

 

Finally, as specified in SoundGTM’s Privacy Policy, you grant us a license to use your customer feedback in connection with providing the Services and for general marketing purposes, unless you notify us otherwise in writing.

 

Data Ownership and Usage.   As specified in SoundGTM’s Privacy Policy, incorporated herein, we will own all Aggregated Data, and the Privacy Policy will govern how we collect and use Personal Information that is submitted through the Services. By accessing or using the Services, you agree that you have read and accept our Privacy Policy.

 

As explained in our Privacy Policy, we have controls in place to prevent outside parties from stealing or accessing your data and Personal Information, but they are not foolproof.  Please exercise caution when disclosing any Personal Information while using our Website.  We will notify one another if either of us becomes aware that your data and/or Personal Information has been compromised.

 

You are solely responsible for resolving disputes regarding ownership or access to your data, including those involving any current or former owners, co-owners, employees or contractors of your business.  You acknowledge and agree that SoundGTM has no obligation whatsoever to resolve or intervene in such disputes.

 

Your Communications with SoundGTM

No Submission of Unsolicited Ideas and/or Materials.   In your communications with SoundGTM, please keep in mind that we do not seek any unsolicited ideas or materials for products or services, or even suggested improvements to products or services, including, without limitation, ideas, concepts, inventions, or designs for music, websites, apps, books, scripts, screenplays, motion pictures, television shows, theatrical productions, software or otherwise (collectively, "Unsolicited Ideas and Materials"). Any Unsolicited Ideas and Materials you post on or send to us via the Website are deemed User Content and licensed to us as set forth below. In addition, the SoundGTM retains all of the rights held by members of the general public with regard to your Unsolicited Ideas and Materials. SoundGTM’s receipt of your Unsolicited Ideas and Materials is not an admission by SoundGTM of their novelty, priority, or originality, and it does not impair SoundGTM’s right to contest existing or future intellectual property rights relating to your Unsolicited Ideas and Materials.

 

DMCA Notice.  SoundGTM will respond appropriately to notices of alleged copyright infringement that comply with the U.S. Digital Millennium Copyright Act ("DMCA"), as set forth below. If you own a copyright in a work (or represent such a copyright owner) and believe that your (or such owner's) copyright in that work has been infringed by an improper posting or distribution of it via the Service, then you may send us a written notice that includes all of the following:

 

(i) a legend or subject line that says: "DMCA Copyright Infringement Notice";

 

(ii) a description of the copyrighted work that you claim has been infringed or, if multiple copyrighted works are covered by a single notification, a representative list of such works;

 

(iii) a description of where the material that you claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material (please include the URL of the Website on which the material appears);

 

(iv) your full name, address, telephone number, and e-mail address;

 

(v) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;

 

(vi) a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the copyright owner (or, if you are not the copyright owner, then your statement must indicate that you are authorized to act on the behalf of the owner of an exclusive right that is allegedly infringed); and

 

(vii) your electronic or physical signature.

 

SoundGTM will only respond to DMCA Notices that it receives by mail, e-mail, or facsimile at the addresses set forth in the “Notice” section of this Agreement.

 

It is often difficult to determine if your copyright has been infringed. SoundGTM may elect to not respond to DMCA Notices that do not substantially comply with all of the foregoing requirements, and SoundGTM may elect to remove allegedly infringing material that comes to its attention via notices that do not substantially comply with the DMCA.

 

Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.

 

We may send the information that you provide in your notice to the person who provided the allegedly infringing work. That person may elect to send us a DMCA Counter-Notification. Without limiting SoundGTM’s other rights, SoundGTM may, in appropriate circumstances, terminate a repeat infringer's access to the Services, Website, and/or any other website owned or operated by SoundGTM.

 

Counter-Notification.   If access on the Website to a work that you submitted to SoundGTM is disabled or the work is removed as a result of a DMCA Notice, and if you believe that the disabled access or removal is the result of mistake or misidentification, then you may send us a DMCA Counter-Notification to the addresses above. Your DMCA Counter-Notification should contain the following information:

 

(i) a legend or subject line that says: "DMCA Counter-Notification";

 

(ii) a description of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled (please include the URL of the Website from which the material was removed or access to it disabled);

 

(iii) a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;

 

(iv) your full name, address, telephone number, e-mail address, and the username of your account;

 

(v) a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or, if the address is located outside the U.S.A., to the jurisdiction of the United States District Court for the Central District of California), and that you will accept service of process from the person who provided DMCA notification to us or an agent of such person; and

 

(vi) your electronic or physical signature.

 

Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.

 

If we receive a DMCA Counter-Notification, then we may replace the material that we removed (or stop disabling access to it) in not less than ten (10) and not more than fourteen (14) business days following receipt of the DMCA Counter-Notification. However, we will not do this if we first receive notice at the addresses above that the party who sent us the DMCA Copyright Infringement Notice has filed a lawsuit asking a court for an order restraining the person who provided the material from engaging in infringing activity relating to the material on the Service. You should also be aware that we may forward the Counter-Notification to the party who sent us the DMCA Copyright Infringement Notice.

 

Disclaimer/No Warranties.   

 

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SOUNDGTM MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICES AND/OR THIS WEBSITE. 

 

SOUNDGTM DOES NOT WARRANT THAT YOUR USE OF THE SERVICES AND/OR THIS WEBSITE WILL BE SECURE, TIMELY, ERROR-FREE OR UNINTERRUPTED, OR THAT THE SERVICES ARE OR WILL REMAIN UPDATED, COMPLETE OR CORRECT, OR THAT THE SERVICES AND/OR WEBSITE WILL MEET YOUR REQUIREMENTS OR THAT THE SYSTEMS THAT MAKE THE SERVICES AVAILABLE (INCLUDING WITHOUT LIMITATION THE INTERNET, OTHER TRANSMISSION NETWORKS, AND YOUR LOCAL NETWORK AND EQUIPMENT) WILL BE UNINTERRUPTED OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. 

 

THE SERVICES AND ANY PRODUCTS AND THIRD PARTY MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND SOLELY FOR YOUR USE IN ACCORDANCE WITH THIS AGREEMENT.  

 

ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE ON BEHALF OF BOTH SOUNDGTM AND ITS AFFILIATES AND THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, CONTRACTORS, LICENSORS, SUPPLIERS AND SERVICE PROVIDERS (COLLECTIVELY, THE “COMPANY PARTIES”).

 

Indemnification.   

 

You agree to indemnify, defend, and hold harmless SoundGTM from and against any and all third party claims alleged or asserted against any of SoundGTM, and all related charges, damages and expenses (including, but not limited to, reasonable attorneys' fees and costs) arising from or relating to: (a) any actual or alleged breach of any provisions of this Agreement; (b) any actual or alleged violation by you, an affiliate, or end user of the intellectual property, privacy or other rights of SoundGTM or a third party; and (c) any dispute between you and another party regarding ownership of or access to your data or Personal Information submitted to SoundGTM via its Website.

 

No Liability.   

 

SOUNDGTM EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY AND WILL NOT BE RESPONSIBLE FOR ANY DAMAGES OR LOSS CAUSED, OR ALLEGED TO BE CAUSED, BY THE TRANSMISSION OF CARDHOLDER DATA PRIOR TO ITS ENCRYPTION AND RECEIPT BY SERVER(S) OWNED OR CONTROLLED BY SOUNDGTM.  THE EXCLUDED DAMAGES WILL INCLUDE, WITHOUT LIMITATION, DAMAGES RESULTING FROM FRAUD, EMBEZZLEMENT, THEFT, IDENTITY THEFT, OR INVASION OF PRIVACY.

 

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL SOUNDGTM PARTIES’ AGGREGATE LIABILITY, COLLECTIVELY, FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE FEES PAID PRECEDING THE DATE OF THE INCIDENT.  ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) APPLY WITH RESPECT TO BOTH SOUNDGTM AND SOUNDGTM PARTIES.

 

IN NO EVENT WILL SOUNDGTM HAVE ANY LIABILITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVER CAUSED, OR FOR ANY LOST PROFITS, LOSS OF USE, DATA OR OPPORTUNITIES, COST OF DATA RECONSTRUCTION, COST OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES OR THIRD PARTY OFFERINGS, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, EVEN IF SOUNDGTM, ITS LICENSORS OR SUBCONTRACTORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.

 

SOUNDGTM EXPRESSLY DISCLAIMS ANY LIABILITY THAT MAY ARISE BETWEEN USERS RELATED TO OR ARISING FROM USE OF THE SERVICES.  YOU HEREBY RELEASE AND FOREVER DISCHARGE SOUNDGTM AND ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND LICENSORS FROM ANY AND ALL CLAIMS, DEMANDS, DAMAGES (ACTUAL OR CONSEQUENTIAL) OF EVERY KIND AND NATURE, WHETHER KNOWN OR UNKNOWN, CONTINGENT OR LIQUIDATED, ARISING FROM OR RELATED TO ANY DISPUTE OR INTERACTIONS WITH ANY OTHER USER, WHETHER ONLINE OR IN PERSON, WHETHER RELATED TO THE PROVISION OF  SERVICES OR OTHERWISE.

 

THE FOREGOING EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

 

Dispute Resolution for Companies, Partners, and Communities   

Informal Dispute Resolution.   We want to address your concerns without needing a formal legal case. Before filing a claim against SoundGTM, you agree to try to resolve the dispute informally by contacting info@soundgtm.com.  We'll try to resolve the dispute informally by contacting you through email. If a dispute is not resolved within 15 days after submission, you or SoundGTM may bring a formal proceeding.

We Both Agree To Arbitrate.   You and SoundGTM agree to resolve any disputes through final and binding arbitration, except as set forth under “Exceptions to Agreement” to Arbitrate below.

Opt-out of Agreement to Arbitrate.   You can decline this agreement to arbitrate by contacting info@soundgtm.com within 30 days of first accepting these Terms of Service and stating that you (including your first and last name) decline this arbitration agreement. 

Arbitration Procedures: The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in San Francisco, California, or any other location we agree to.

Arbitration Fees.   The AAA rules will govern payment of all arbitration fees. SoundGTM will pay all arbitration fees for claims less than $75,000. SoundGTM will not seek its attorneys' fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.

Exceptions to Agreement to Arbitrate.  Either you or SoundGTM may assert claims, if they qualify, in small claims court in Seattle (WA) or any United States county where you live or work.  Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of SoundGTM’s products or SoundGTM’s Service, or infringement of intellectual property rights (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above.

No Class Actions.   You may only resolve Disputes with SoundGTM on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action.  Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations aren't allowed under this Agreement.

Judicial Forum for Disputes.   In the event that the agreement to arbitrate is found not to apply to you or your claim, you and SoundGTM agree that any judicial proceeding (other than small claims actions) will be brought in the federal or state courts of King County, Washington.  Both you and SoundGTM consent to venue and personal jurisdiction there.  We both agree to waive our right to a jury trial.

Miscellaneous Provisions

 

Choice of Law.   These Terms of Service and the relationship between you and SoundGTM shall be governed by the laws of the State of Washington without regard to its conflict of law provisions. 

Relationship of the Parties.   This Agreement does not, and will not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and SoundGTM.

Entire Agreement.   These Terms of Service and Privacy Policy referenced herein constitute the entire agreement between you and SoundGTM concerning the subject matter herein and the use of the Services and/or Website.  They supersede any and all previous or contemporaneous agreements, written or oral, between you and SoundGTM, including previous versions of these Terms of Service and/or Privacy Policy, with respect to the terms referenced herein.  If there is a discrepancy between these Terms of Service and Privacy Policy and any offline agreements you have with SoundGTM, the terms in the Terms of Service and Privacy Policy shall govern.

Modification.   SoundGTM reserves the right, at its sole and absolute discretion, to change, modify, add to, supplement or delete any of these Terms of Service and/or Privacy Policy, and any and all referenced and/or incorporated exhibits or policies, programs and guidelines.  SoundGTM will post the updated terms to this page and endeavor to notify you of any material changes by email, but will not be liable for any failure to do so.  If any future changes to these Terms of Service and/or Privacy Policy are unacceptable to you or cause you to no longer be in compliance with these Terms of Service, you must terminate, and immediately stop using, the Services.  Your continued use of the Services following any revision to these Terms of Service constitutes your complete and irrevocable acceptance of any and all such changes.

Assignment.   SoundGTM may assign these Terms of Service and/or Privacy Policy in whole or part at any time.  However, you may not assign, delegate or transfer this Agreement in whole or in part, without SoundGTM’s prior written consent.

No Waiver.   Any failure of SoundGTM to enforce or exercise a right provided in these Terms of Service and/or the Privacy Policy is not a waiver of that right.

Severability.   Should any provision of these Terms of Service be found invalid or unenforceable, the remaining terms shall still apply.

Force Majeure.   Neither Party will be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) for causes beyond that Party’s reasonable control and occurring without that Party’s fault or negligence, including, but not limited to, acts of God, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems (other than those involving SoundGTM’s or your employees, respectively), computer attacks (by government/nation entities or otherwise) or malicious acts, such as attacks on or through the Internet, any Internet service provider, telecommunications or hosting facility.  Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.

Electronic Communications and Signatures.   You agree to the use of electronic communication in order to enter into agreements and place orders, and to the electronic delivery of notices, policies and records of transactions initiated or completed through the Services.  Furthermore, you hereby waive any rights or requirements under any laws or regulations in any jurisdiction that require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable law.

Notices.   Any notices provided by SoundGTM under this Agreement and/or the Privacy Policy may be delivered to you to the email address(es) we have on file for your Account.  You hereby consent to receive notice from us through the foregoing means, and such notices will be deemed effective when sent if on a business day, and if not sent on a business day then on the next business day.  Except as otherwise specified in the Agreement, any notices to SoundGTM under this Agreement must be delivered either via email to info@soundgtm.com or via first class registered U.S. mail, overnight courier, to: SoundGTM, Inc., 300 Lenora Street PMB 1060, Seattle, WA 98121. 

 

I HEREBY ACKNOWLEDGE THAT I HAVE READ AND UNDERSTAND THE FOREGOING TERMS OF SERVICE, INCLUDING SOUNDGTM’S PRIVACY POLICY, AND AGREE THAT MY USE OF THE SERVICES IS AN ACKNOWLEDGMENT OF MY AGREEMENT TO BE BOUND BY THE TERMS AND CONDITIONS OF THESE TERMS OF SERVICE AND SOUNDGTM’S PRIVACY POLICY INCORPORATED HEREIN.

 

 

Addendum 1

Referral Partner Program Terms

 

These Referral Partner Terms herein supplement the terms of executed Terms of Service with SoundGTM, which is fully incorporated by reference herein, and to the extent there is a conflict, the terms of the executed Terms of Service shall govern.

This Referral Partner Program Addendum for Customer and Referral Partner (this "Addendum") is made by and between SoundGTM  ("SoundGTM" or "Us" or "We"), and you or the organization you represent, as a Customer participating in the SoundGTM Referral Partner Program and associated services (“Customer” or "You"). This Addendum shall be made part of the Order Form and associated Terms between You and Us. 

You must agree to abide by the terms and conditions contained in this Addendum in order to participate in the SoundGTM Referral Partner Program (the “Program”) provided by SoundGTM. PLEASE READ THIS ADDENDUM CAREFULLY BEFORE REGISTERING FOR THE PROGRAM. By signing up for the Program, You indicate Your acceptance of the terms and conditions set forth in this Addendum. If You do not accept this Addendum, do not register for or continue use of the SoundGTM Referral Partner Services.

1. Definitions. The following is a list of defined terms used throughout this Addendum.

a. Referral Partner. A “Referral Partner” is an individual or entity that registers with SoundGTM and agrees to display Links (hereinafter defined) and otherwise market products or provide services for Customers (hereinafter defined) in order to generate approved sales by such Customers, in exchange for commissions.

b. Offers. An "Offer" describes the particular specifications by which a Customer is willing to allow a Referral Partner to market its products or provide services. Offers may specify types of media used (e.g., Links or banner ads), details of approved sales, and commissions available to Referral Partners for such approved sales. 

 

c. Link. A "Link" is a hyperlink placed by a Referral Partner that, when clicked on, serves the Customer’s website to the internet user's browser. The Link may be in the form of text, a product image, a button, a banner, or any other format acceptable to the Customer and defined in an applicable Offer.

 

d. Customer. A "Customer" is an individual or entity that is a client of SoundGTM that has subscribed to the Program and agrees to pay a commission to a Referral Partner in accordance with an Offer. 

 

e. Site. The “Site” is the Referral Partner Program page at the https://www.soundgtm.com and https://www.soundgtm.ai websites.

2. The Service. Through the Program, Customer can engage Referral Partners to provide services or post Links and otherwise market Your products or services, pursuant to the individual terms You propose via an Offer (the “Services”). All relationships and interactions between You and any Referral Partners will be managed by and conducted through the Program and will be subject to, in Your case, this Addendum, and in the case of a Referral Partner, the Referral Partner Agreement. You agree that you shall establish additional terms in Your discretion, between You and a Referral Partner. You further agree that the Program provides a means through which You can facilitate your relationship with Referral Partners; however, the details of an Offer and the ultimate contractual relationship underlying an Offer are between You and the Referral Partner. 

3. Subscription Services. In addition to the other terms contained in this Addendum, if Customer or Referral Partner (each a “Party”) signs up for the SoundGTM Subscription Services (“Subscription”), the following terms apply:

a. Access. If a Party signs up for the SoundGTM Subscription, additional terms will be provided in the order form provided to that Party by the Company (“Order Form”). Access to the Subscription will be limited to the number of authorized users identified in the Order Form and is subject to and in compliance with this Agreement. You may not reverse engineer, decompile, decode, decrypt, disassemble, or in any way derive source code from the Subscription.

b. Customer or Referral Partner Data. Each Party is and will remain the sole and exclusive owner of all right, title, and interest in and to all information, data, and other content, in any form or medium, that is collected or otherwise received, directly or indirectly, from such Party by or through the Subscription (for the avoidance of doubt, Customer and/or Referral Partner Data does not include Aggregated Data) (“Customer and Referral Partner Data”). Each Party hereby grants SoundGTM all such rights and permissions in or relating to Customer and Referral Partner Data as are necessary or useful for SoundGTM to perform its obligations hereunder.  

c. Fees. In exchange for the Subscription, each Party shall pay SoundGTM the fees as identified in the Order Form.  

d. Termination. Upon termination or expiration of the Subscription, access will immediately terminate, and such Party will have no further right to access or use of any Service. 

 

3. Registration and Retainer Accounts. In order to register as a Customer with SoundGTM and to participate in the Program, You must complete the required application form found on the Site, which requires supplying a name, supplying a valid e-mail address, creating an acceptable password and funding your Retainer Account based on the agreed upon amount designated in Your Order Form. 

SoundGTM may send emails to You at the email address You provide and to otherwise communicate with You for purposes related to the Program, including, but not limited to, informing You of applicable changes or additions to the Program, the Site or this Addendum.

4. Customer’s Retainer Account. You shall maintain an account with SoundGTM that You fund to process payments associated with transactions with Us and Referral Partners (“Retainer Account”). In the Retainer Account You agree to maintain a minimum retainer amount as stated in your Order Form (“Retainer Minimum”).  

The Retainer Account balance shall be used by SoundGTM as follows: a) to pay Referral Partners in accordance with each Offer, and b) to pay SoundGTM’s Transaction Fee in accordance with Your Order Form.

The Retainer Account may not fall below ten percent (10%) the Retainer Minimum in any given month. If Your Retainer Account falls below the Retainer Minimum, then SoundGTM will notify You to replenish your Retainer Account within seven (7) business days to replenish the Retainer Account so that it is no longer below ten percent (10%) of the Retainer Minimum. You acknowledge and agree that a Referral Partner will not be paid unless there are funds available in Your Retainer Account. 

If there are insufficient funds in Your Retainer Account to cover the Transaction Fees or Commission Fees or if your Retainer Account falls below the Retainer Minimum established in the Order Form, SoundGTM may limit or suspend Your account until such Retainer Minimum is met by You (“Suspension”). In the event of Suspension, any previously earned Transaction Fees or Commission Fees shall continue to be due in accordance with this Addendum and must be paid before the Referral Partner Services are resumed.

5. SoundGTM Fees. In accordance with your Order Form, SoundGTM will charge: a) a per transaction fee based on the Referral Partner Commission Fee (“Transaction Fee”), and b) a platform based fee for Your subscription to our Platform (“Platform Fee”). 

Transaction Fees may be collected when the Referral Partner is paid and shall be visible by You within the SoundGTM system. 

a. Non-circumvention. You agree not to circumvent the SoundGTM Services directly or indirectly by settling, conducting or undertaking any payment transaction outside of the SoundGTM Services with partners or transactions brought to your program, facilitated or introduced by SoundGTM Customers, except as stated in Sections 12 and 13 of this Agreement. You further agree that fees earned through this Program by Referral Partners while you are actively using the SoundGTM Services shall remain payable by you to SoundGTM.

 

6. Offers. Once You have registered for the Program, You may list Offers based on the number of Offers allowed in the Order Form. For each Offer, You are free to determine the types services and/or types of advertisements You would like Referral Partners to use (including Links, banner ads, and other advertising materials), the kinds of media in which Your approved advertisements can appear, and the Commission Fee that will be paid to a Referral Partner for advertising such product or service. In each case, You must provide this information through an Offer, which shall be a direct contractual arrangement between You and the Referral Partner(s) of Your choosing. Specifics of the Offers and activity with Your Referral Partners shall be tracked through the Program.

 

7. Referral Partner Commission Fee. You agree to pay the agreed-upon commission fee in an Offer for each Consumer Action by a Referral Partner (the "Commission Fee"). The term “Consumer Action” shall mean any action that a consumer takes that triggers a Commission Fee under an Offer. You authorize SoundGTM to use the funds in Your Retainer Account to pay such Commission Fee for each such completed Consumer Action. 

 

8. Customer Content. You represent that all content, data, or information You provide to SoundGTM or post on the Site is solely owned by You or provided by You with the express authority of the person or entity You represent; does not infringe upon any other individual's or entity's rights (including, without limitation, intellectual property rights); and is not defamatory, libelous, unlawful, or otherwise objectionable. You shall not provide, promote, distribute, sell, place, or otherwise publish as a Customer (or in connection with the Referral Partner Program) any content, product, service, or website that includes content, that is libelous, defamatory, obscene, pornographic, abusive, fraudulent or violates any law. You are solely responsible for the content, products, services, data, and information You provide, promote, distribute, sell, place, or otherwise publish and for Your website.

9. Sale of Physical Products. In addition to the other terms contained in this Addendum, if Customer offers for sale any physical, tangible, and/or non-digital goods or products ("Physical Products") through the Referral Partner Program, the following terms apply:

a. Fulfillment and Shipping. Customer is solely responsible for timely fulfilling and shipping all orders for Physical Products and collecting and/or paying the cost for such shipment and fulfillment.

b. Applicable Law and Taxes. Customer is solely responsible for complying with any applicable state, local, federal, or other law, rule, or regulation related to the sale or shipment of any Physical Products. Customer is solely responsible for the collection and payment of any taxes related to the sale of any Physical Products.

c. Representations and Warranties. Customer represents and warrants that any Physical Products offered, advertised, or sold by Customer (i) do not infringe upon the rights of any third-party; (ii) are not defective or recalled, (iii) do not promote or contain any of the content contained in Section 8, above; and (iv) comply with any and all other terms and guidelines posted by SoundGTM on the Site and in any other part of the Referral Partner Program materials.

10. Prohibited Websites, Content, Products, and Services.

You may not use the Program to advertise, sell, or link to any websites, products, or services that contain, promote, or engage in any of the following, in SoundGTM’s sole discretion:

  • X-rated or sexually explicit materials;

  • Violence or discord;

  • Discrimination based on race, religion, nationality, disability, sexual orientation or age;

  • Any illegal activity, including hacking;

  • Aggressive sales tactics;

  • The violation of intellectual property rights; or

  • The violation of any other terms posted by SoundGTM on the Site or in any part of the Referral Partner Program (provided, that in the event SoundGTM intends to rely on this provision, it will provide notice and an opportunity to cure).

SoundGTM reserves the right to prohibit Customer from promoting or selling any website, product, or service through the Program in SoundGTM’s sole discretion.

11. Licenses and Intellectual Property. You hereby grant to Us a worldwide, nonexclusive, limited, revocable right to use and display on the Site and make available to Referral Partners for use and display the Links, advertisements and trademarks that You choose to display with SoundGTM.

We grant You a nonexclusive, non-transferable, revocable, limited license to access and make use of the Site and material provided thereon in order to post Your Links, advertisements and related materials; provided, that, You fully comply with this Addendum.

The registered and unregistered trademarks, service marks, tradenames, graphics, logos, page headers, button icons, scripts, trade dress, or other indicia of trade origin (collectively, "Trademarks") of SoundGTM may not be used in connection with any business, product, or service. All other Trademarks not owned by SoundGTM that appear on the Site are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by SoundGTM. 

Except as expressly provided in this Section, SoundGTM grants no other rights or licenses hereunder. SoundGTM shall remain the sole owner of all intellectual property rights to the Service(s) and the Program. All content on the Site or in the Program, including, but not limited to, text, design, graphics, logos, button icons, images, audio clips, digital downloads, interfaces, data compilations, software, and code, and the compilation of all content on the Site or the Program, as well as all software used on the Site or associated with the Program, is the property of SoundGTM, its Referral Partners, or its other Customers, and is protected by United States and international copyright laws. Any content provided by You shall continue to be owned by You. 

12. Hiring Referral Partners. As a Customer, you may seek to employ a Referral Partner and have such Referral Partner assigned to work for you.  No work can begin outside of this Agreement until the engagement is approved by SoundGTM.  

 

a. Hiring; Limitations on Hiring.  Customer acknowledges and agrees that Customer selects a Referral Partner to employ as an employee or independent contractor based upon Customer’s determination that Referral Partner possesses the skills, background, and education to satisfy the requirements of the assignment. SoundGTM does not (a) select the Referral Partner; (b) have the authority or ability to decide to engage or end the engagement of the Referral Partner on behalf of Customer; (c) make any independent evaluation or investigation or otherwise conduct any due diligence regarding Referral Partners, their resumes, qualifications, skills, background, or prior experience; or (d) make any representations or warranties as to the skills, experience, background, or education of any Referral Partner or Employee. SoundGTM is not responsible for and shall have no liability for Customer’s use of or reliance on any Referral Partner information posted or provided by SoundGTM.

 

The Customer has the right not to hire a Referral Partner for any lawful reason or no reason at all, including if the Referral Partner does not meet the Customer’s standards for employment or the job is considered, in the Customer’s sole discretion, too hazardous or not covered by the applicable workers’ compensation insurance policy. 

 

b. Fees.  For each Referral Partner Customer engages as its own employee or independent contractor, Customer agrees to be subject to a fee in an applicable order form.  Customer also acknowledges and agrees that Customer is responsible for applicable taxes and any Referral Partner costs or applicable fees (to be communicated at the start of the Referral Partner’s employment), as well as any payment processing fee. Customer acknowledges and understands that payment is due in full the day the invoice is sent. Client agrees and authorizes SoundGTM to charge Customer’s Payment Method the full amount invoiced on the same day the invoice is issued.

 

13. Disclaimer of Liability for SoundGTM after Referral Partner Employment.  Customer acknowledges and agrees that Customer and Referral Partner are solely responsible for Referral Partner’s Services and for all work performed and Work Product created once Customer hires such Referral Partner as an employee or independent contractor. SoundGTM provides no express warranty of, will have no implied warranty of, and will have no responsibility for, the Customer’s services, Referral Partner Services and/or Work Product. SoundGTM expressly disclaims all express and implied warranties for Referral Partner Services and/or Work Product, including, without limitation, warranties of non-infringement, merchantability, and fitness for a particular purpose. As between SoundGTM and Customer, Referral Partner Services, Work Product, and deliverables are provided AS IS.

14. Taxes and Related Charges. You are solely responsible for ensuring the collection and payment of any and all applicable state, local, or other taxes or related charges arising from any customer purchasing Your products or services. You agree to indemnify Us from any liability connected with the same.

15. SPAM. You agree to comply with all U.S. state and federal SPAM laws, including, but not limited to, the Federal CAN-SPAM Act of 2003 and any rules or regulations promulgated by any Federal Trade Commission or any other federal agency thereunder. You also agree to indemnify Us from any liability connected with SPAM or unsolicited e-mail transmissions by You or connected to You.

16. Representations, Warranties, and Covenants.

Customer represents and warrants that: (i) Customer’s websites, advertisements, links, disclosures, landing pages, claims, representations, scripts, videos, and any other media related to Customer’s sale or promotion of its products or services (collectively the "Advertisements") will comply with all applicable State and Federal laws; (ii) Advertisements do not contain or promote, nor link to any website that contains or promotes, libelous, defamatory, abusive, violent, prejudicial, obscene, sexually explicit or illegal content, products, services or activities; (iii) Customer owns or has the legal right to use, distribute, and/or sell (as applicable) all content, copyrighted material, products, and services displayed on Customer’s websites and other media; (iv) Referral Partner shall not offer or promote products or services (or websites or links to websites) containing any pornographic, racially or ethnically discriminatory, political, software pirating or hacking, hate-mongering, or otherwise objectionable or illegal content; (v) Customer shall at no time use SoundGTM’s proprietary software or any materials provided by SoundGTM or an Referral Partner in any manner other than that which is specifically contemplated herein; (vi) [intentionally omitted] ; (vii) Customer shall at no time engage in, disseminate, promote or otherwise distribute links or marketing materials through the use of contextual media, specifically, downloadable software (also called adware, pop-up/pop-under technologies, plug-ins, and other names as applicable); (viii) Customer will not provide Links to any website or provide any other advertising materials that contain inappropriate content, which includes, but is not limited to, content that: (a) promotes the use of alcohol, tobacco or illegal substances, nudity, sex, pornography, adult-oriented content (such as phone sex or escort services), expletives or inappropriate language; (b) promotes gratuitous violence, abuse or threats of physical harm; (c) promotes illegal or unethical activity, racism, hate, SPAM, mail fraud, gambling, sweepstakes, pyramid schemes, investment and money-making opportunities or illegal advice; (d) promotes use of illegal substances or illegal activities (such as bomb building, counterfeiting money or using pirate software); (e) is libelous, defamatory, infringing, false, misleading or contrary to public policy; (f) is otherwise prohibited by Federal or State law; or (g) [intentionally omitted] ; (ix) Customer will not engage in any spoofing, redirecting or trafficking from adult-related websites in an effort to gain traffic or websites that are point, lottery or rewards based and encourage users to click on offers or use offers to generate revenue for users to win points, rewards, or other incentives (unless expressly approved in writing by SoundGTM); (x) Customer will not violate any third party terms and conditions, which includes, but is not limited to, the unauthorized use of a third party website for commercial gain or post bulletins to non-owned accounts; (xi) Customer will not use deceptive or misleading practices (such as the use of spyware, adware, devices, programs, robots, iframes, hidden pictures, redirects, spiders, computer scripts or other automated, artificial or fraudulent methods designed to appear as if a consumer is generating a lead); and (xii) Customer’s products and services do not infringe upon the rights of any third-party.

Customer further represents and warrants that the products or services Customer’s offers through the Advertisements either: (1) do not constitute a Business Opportunity as defined by 16 C.F.R. § 437.1(c); or (2) may constitute a Business Opportunity as defined by 16 C.F.R. § 437.1(c) and Customer complies with the Business Opportunity Rule and provides all appropriate disclosures and forms to Customer’s prospective customers as required by the Rule, including the completed "Disclosure of Important Information About Business Opportunity" in the time and form required by the FTC under 16 C.F.R. § 437.3. Customer further represents and warrants that the Customer and the Advertisements either: (1) do not make any Earnings Claims as defined by 16 C.F.R. § 437.1(f); or (2) if the Customer or Advertisements may make an Earnings Claim as defined by 16 C.F.R. § 437.1(f) then Customer shall disclose to Customer’s prospective customers the completed Earnings Claim Statement required by the FTC under 16 C.F.R. § 437.4. Customer further represents and warrants that Customer has a reasonable basis for such Earnings Claims, has in its possession written materials that substantiates such Earnings Claims, and will produce such substantiating materials to SoundGTM immediately upon request. If the FTC amends the business opportunity rule, Customer represents and warrants that it will comply with the amended business opportunity rule.

SoundGTM represents and warrants that it shall provide the Services in a professional and workmanlike manner, and that such Services will perform substantially in compliance with any and all specifications and documentation applicable thereto. Additionally, any information SoundGTM provides concerning the occurrence of a Consumer Action hereunder, or any representation concerning any amount due and owing hereunder (including any commission fee allegedly payable to SoundGTM) shall be accurate. 

17. Limitation of Liability; Disclaimer of Warranty. IN ADDITION TO THE LIMITATIONS OF LIABILITY IN THE TERMS GOVERNING THE PARTIES, IN NO EVENT SHALL SOUNDGTM BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM: (A) CUSTOMER’S RELATIONSHIP WITH REFERRAL PARTNER(S), AND (B) ANY OF CUSTOMER’S PRODUCTS, SERVICES, ADVERTISING OR PROMOTIONAL MATERIALS OR OFFERS; PROVIDED, THAT THE FOREGOING LIMITATION DOES NOT APPLY TO ANY CLAIMS ARISING FROM SOUNDGTM’S GROSS NEGLIGENCE, WANTON MISCONDUCT, OR BREACH OF ANY WARRANTY OR BREACH OF ANY CONFIDENTIALITY, SECURITY, OR DATA PROTECTION OBLIGATIONS ARISING HEREUNDER.

SoundGTM makes no representations and warranties whatsoever, other than those otherwise stated expressly herein, and disclaims any responsibility and liability, regarding the content or nature of any advertisement or marketing materials, or any product or service advertised in connection therewith or on any linked pages. SoundGTM has no liability to Customer for unapproved hyperlinks or materials, including all copy, images, URL names and search terms used by Customer for promotions, campaigns or programs. SoundGTM makes no representations whatsoever about any other website that Customer may access through SoundGTM’s services or the Referral Partner Program. When Customer accesses a website that is not associated with and is independent from SoundGTM, Customer acknowledges that SoundGTM has no control over the content of such website. SoundGTM does not guarantee that Customer will achieve any particular earnings or results through Customer’s use of the Referral Partner Program. 

18. Indemnity. 

a. By Customer or Referral Partner.  Customer and/or Referral Partner will defend, indemnify, and hold harmless the SoundGTM (“Indemnified Party”) and its Referral Partners, directors, employees, agents, successors and assigns from and against all claims, actions, demands, suits, causes of action and/or any liability, of any kind whatsoever (each a “Claim”), for losses, damages, costs, and expenses (including reasonable attorneys' fees and expenses) (“Losses") arising from, related to or associated with (i) any acts or omissions of Customer, (ii) in the case of Customer or Referral Partner, the advertisement, sale, or use of any of Customer or Referral Partner’s products or services (including any Physical Products), (iii) any breach of this Addendum by the Indemnifying Party, or (iv) any breach by Customer or Referral Partner of any representations or warranties contained herein.

 

b. By SoundGTM. SoundGTM shall indemnify and defend any Claim brought against Customer arising out of or relating to any allegation that Customer’s use of the Services infringes a third party’s Intellectual Property Rights (an “IP Claim”). SoundGTM’s indemnity obligation will apply to any Losses that: (i) a court finally awards as a result of any IP Claim; or (ii) are agreed to by SoundGTM in any settlement arising from any IP Claim, in each case subject to this Section 16; provided, that SoundGTM shall have full control over the defense of the IP Claim and (x) any settlement or resolution entered into by SoundGTM shall not require an admission of liability or any payment by Customer, (y) Customer has not made any admission against SoundGTM’s interests and has not agreed to any settlement of any claim or demand without SoundGTM’s consent, and (z) Customer shall cooperate with SoundGTM in the defense of the claim, at SoundGTM’s expense. 

Notwithstanding anything herein to the contrary, SoundGTM will have no obligation or liability to Customer under this Section 16(b) if: (i) the IP Claim is based upon, arises out of or is related to (a) the combination of any of the Services with any other software, hardware or products not provided by SoundGTM; (b) the use of the Services for other than their intended purpose; or (c) modifications, improvements and derivative works of SoundGTM created by or on behalf of Customer; (ii) Customer is in material breach of this Agreement or has failed to pay amounts due hereunder as set forth in Section 5; or (iii) Customer fails to notify SoundGTM of the IP Claim in a prompt manner and the delay results in prejudice to SoundGTM.

If any part of the Services become the subject of an IP Claim, SoundGTM may, at SoundGTM’s option and expense, (i) procure for Customer the right to continue using the Services; (ii) replace or modify the Services with a non-infringing version of substantially equivalent function and performance; or (iii) terminate this Agreement and refund to Customer on a pro rata basis any prepaid but unused subscription fees. The obligations of SoundGTM set forth in this Section 16 shall constitute the sole and exclusive remedy of Customer with respect to any IP Claim.

19. General.

a. Term. This Addendum shall begin upon Our acceptance of Your application and the execution of Your Order Form for the Referral Partner Program and shall remain in effect until terminated by either party in accordance with the Order Form, this Addendum or the Terms. For the avoidance of doubt, the Term shall cease upon the cessation of any Order Form without express written agreement to renew the same. 

b. Termination by SoundGTM. SoundGTM may terminate this Addendum for cause if (a) You have not paid Us in accordance with this Addendum and Your Order Form, provided that Customer shall have a period of thirty (30) days following written notice to cure such nonpayment, and (b) You have violated the terms of this Addendum or Your Order Form. 

c. Termination by Customer or Referral Partner.  Customer or Referral Partner may terminate this Addendum at any time, including with or without cause, by serving a notice of termination in writing (email acceptable); however, Customer or Referral Partner shall pay out the remainder of the fees for the Term in the Order Form. With respect to any unused amounts in the Retainer Account, Customer or Referral Partner shall be entitled to a return of all monies prepaid to SoundGTM at that time.  In the event Customer or Referral Partner terminates this Addendum as a response to material breach by SoundGTM, Customer shall be entitled to a return of any prepaid fees, including any prepaid Platform Fee.

SoundGTM has no obligation to confirm or acknowledge any notice of termination between Referral Partner and Customer and therefore shall not be liable for any outstanding payments or other obligations which remain unfulfilled by a Referral Partner and/or Customer.

c. Relationship.

The parties agree that SoundGTM is acting as an independent contractor in offering its services and managing the Referral Partner Program and that the relationship between SoundGTM, Referral Partner, and/or Customer shall not constitute a partnership, joint venture or agency.

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