Legal
Supplier Terms & Conditions
Last updated October 21, 2026
1. UPDATES
In the event these General Terms are updated, a new version of these General Terms will be published on Mission Media's website at missionmedia.ai, and the date will be noted above. Unless the Order specifically states otherwise, any reference to these General Terms in an Order shall be deemed to be a reference to the then-current version of these General Terms published on the Mission Media website as of the date of the Order. Any modifications relating to the Agreement are governed by Section 14.6.
2. STRUCTURE OF THE AGREEMENT
Each Order shall incorporate these General Terms and one or more applicable Addenda by reference. The Order, together with these General Terms, the applicable Addenda, the Privacy Notice, and the DPA (each as defined below) comprise the entire Agreement between the parties with respect to the subject matter hereof and supersede all prior agreements and commitments with respect thereto. The parties may, by mutual written agreement, modify these General Terms or the applicable Addenda in an amendment (each, an "Amendment") or in the Order. Any conflict among or between the terms and conditions of the documents making up the Agreement, shall be resolved in accordance with the following order of precedence (in descending order of precedence): (i) the Order; (ii) the Amendment; (iii) the DPA; (iv) the Privacy Notice; (v) the Addenda; (vi) the General Terms; and (vii) any additional document referenced in the Agreement.
3. DEFINITIONS
3.1 "Addendum" means the terms and conditions set forth in an addendum to the General Terms that has been incorporated into an Order pursuant to Section 2.
3.2 "Administrators" means Authorized Users designated by Customer as having administrative privileges within the Platform to act on Customer's behalf, including, without limitation, organization administrators, show administrators, and show editors.
3.3 "Advertisement" or "Ads" means materials or messages in any format that promote an Advertiser's brands, products, and/or services.
3.4 "Advertiser" means a company that advertises its brands, products, and/or services via the Advertisements.
3.5 "Affiliate" means, with respect to any entity, any other entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such entity. The term "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.
3.6 "Agency" means an entity engaged by an Advertiser to manage its advertising campaigns, in whole or in part.
3.7 "Agreement" means an Order together with the General Terms, any applicable Addenda, and any Amendments.
3.8 "API" means an application program interface.
3.9 "Applicable Laws" means all laws, ordinances, rules, and regulations applicable to the parties' activities under the Agreement, including, without limitation, all applicable Privacy Laws.
3.10 "Audio Player" means the audio player(s) to be Integrated with the Platform (i.e., Customer's audio player and/or any third-party audio players such as those of Tuneln, Spotify, and Apple).
3.11 "Authorized User" means an employee of Customer, or an individual consultant engaged by and acting under the direction and control of Customer, who is designated by Customer as having the right to access and use the Platform pursuant to the Agreement.
3.12 "Beta Features" means features, functionalities, and/or modules of the Platform that are not generally available to Mission Media's customers for production use.
3.13 "Buyer" means third-party sources of Advertisements, including, without limitation, Advertisers, Agencies, ad exchanges, and demand side platforms ("DSPs").
3.14 "Code" means any pixels, tags, software, APIs, or other code provided to Customer by Mission Media in connection with the Agreement.
3.15 "Confidential Information" means: (i) with respect to Mission Media, the Platform, any and all source code, the Documentation, the Code, all pricing, fees and revenue share terms relating to the Agreement, and any other non-public information or material regarding Mission Media's legal or business affairs, financing, customers, Buyers, properties, or data, and all Intellectual Property Rights in any of the foregoing; and (ii) with respect to Customer, any non-public information or material regarding Customer's legal or business affairs, financing, customers, properties, or data, and all Intellectual Property Rights in any of the foregoing. Notwithstanding any of the foregoing, Confidential Information does not include information which: (a) is or becomes public knowledge without any action by, or involvement of, the party to which the Confidential Information is disclosed (the "Receiving Party"); (b) is documented as being known to the Receiving Party prior to its disclosure by the other party (the "Disclosing Party"); (c) is independently developed by the Receiving Party without reference or access to the Confidential Information of the Disclosing Party and is so documented; or (d) is obtained by the Receiving Party without restrictions on use or disclosure from a third person who, to the Receiving Party's knowledge, does not owe a duty of confidentiality to the Disclosing Party (e.g., contractual, fiduciary, or otherwise).
3.16 "Content" means all content and materials made available on or through a Digital Property, including, without limitation, live audio streams and podcasts.
3.17 "Digital Property" means a digital property (e.g., website, mobile site, mobile application, Audio Player, or other online service or property) that is owned, controlled, and/or operated by Customer.
3.18 "Distributed Content" means the particular live station(s) and/or podcast(s) that Customer has designated for distribution to Mission Media for generalized monetization purposes.
3.19 "Documentation" means the documentation, policies, procedures, specifications, and technical guidelines that Mission Media provides to Customer, including all OpenRTB integration documentation, API documentation and supporting information, whether made available through the Platform or sent to Customer by email on an as-needed basis.
3.20 "Editorial Adjacency Guidelines" means any Buyer guidelines provided to Customer regarding the types of Content the Ads are prohibited from appearing near.
3.21 "Fees" means the Revenue Share and any other amounts payable by Mission Media to Customer, as set forth in the Order.
3.22 "Impressions" means the number of times an Advertisement has been delivered to Users through the Inventory, as measured by Mission Media.
3.23 "Integrate" or "Integration" means the installation and configuration of Code within the servers and Digital Properties to enable the delivery of the Services.
3.24 "Intellectual Property Rights" means any and all intellectual property rights throughout the world, including, without limitation, any and all patents, patent applications, copyrights, copyright applications, moral rights, trademarks, trade secret rights, rights to know-how, inventions and algorithms, and any and all similar or equivalent rights.
3.25 "Malicious Code" means any computer virus, Trojan horse, worm, time bomb, or other similar code or hardware component designed to disable, damage, or disrupt the operation of, permit unauthorized access to, erase, destroy, or modify any software, hardware, network, or other technology.
3.26 "Marketplace Inventory" means Ad spaces within a Digital Property designated by Customer as being available for sale by Mission Media to Buyers through the Platform.
3.27 "Order" means any order for Services.
3.28 "Personal Information" means any information about an individual whose disclosure is protected or otherwise regulated by any Privacy Law.
3.29 "Platform" means Mission Media's proprietary platform(s), marketplace and related technology through which Mission Media provides the Services.
3.30 "Prohibited Content" means content that: (i) is illegal under Applicable Law; (ii) violates any third party's Intellectual Property Rights; (iii) contains indecent or obscene material; (iv) contains libelous, slanderous, or defamatory material, or material constituting an invasion of privacy or misappropriation of publicity rights; (v) promotes unlawful or illegal goods, services, or activities; (vi) contains false, misleading, or deceptive statements, depictions, or sales practices; (vii) violates any Editorial Adjacency Guidelines or Documentation; or (viii) contains Malicious Code.
3.31 "Services" means the monetization services provided by Mission Media to Customer pursuant to, and in accordance with, the Order, including making the Inventory available to Buyers through the Platform.
3.32 "MissionMedia-Observed Holidays" means New Year's Day, Martin Luther King, Jr. Day, President's Day, Memorial Day, Juneteenth National Independence Day, Independence Day, Labor Day, Thanksgiving Day, day after Thanksgiving, Christmas Day, and New Year's Eve.
3.33 "Taxes" means any federal, provincial, or local sales, PST, GST, HST, VAT, foreign withholding, use, property, excise, service, or similar transaction taxes.
3.34 "Term" means the Initial Term and any subsequent Renewal Terms, each as defined and set forth in the Order.
3.35 "Third-Party Inventory" means Ad spaces within a Third-Party Property designated by Customer for Ad insertion through a programmatic connection or direct Ads provided by Mission Media.
3.36 "Third-Party Property" means a digital property (e.g., website, mobile site, mobile application, Audio Player, or other online service or property) that is owned, controlled, and/or operated by a third party with which Customer makes an Integration as instructed by Mission Media.
3.37 "User" means an end user of a Digital Property or Third-Party Property.
3.38 "Inventory" means, collectively, the Marketplace Inventory and the Third-Party Inventory.
3.39 "Invalid Traffic" means any Impression, request or other activity that is generated by bots, spiders, scripts or other automated means, by incentivized or forced listening, by misrepresenting the Content, location or device, or by any other means intended to artificially inflate Impressions or revenue.
3.40 "Net Revenue" means the gross amounts actually received by Mission Media from Buyers for Advertisements delivered on the Inventory in a calendar month, less (i) any amounts refunded, credited or charged back to Buyers, including for Invalid Traffic, and (ii) any third-party ad serving, data, verification and payment processing fees directly attributable to those Advertisements.
3.41 "Revenue Share" means the percentage of Net Revenue payable to Customer as set forth in the Order.
4. USE OF THE PLATFORM
4.1 Access to Platform. During the Term, to the extent necessary for Mission Media to perform the Services: (i) Mission Media shall provide the Administrators with access to the Platform; (ii) the Administrators shall create the accounts for (and manage) all Authorized Users; and (iii) Customer shall maintain the confidentiality of all access credentials issued to it. Customer is responsible for the acts and omissions of its Authorized Users and any other person who accesses and uses the Platform using any of Customer's or its Authorized Users' access credentials. Customer shall be solely responsible for any acquisition, implementation, support, or maintenance of third-party products or services purchased by Customer that may Integrate with the Platform, including, without limitation, any third-party Audio Players.
4.2 Integrations. Mission Media shall provide to Customer the Code necessary for the Integrations. Unless otherwise set forth in the Order, Customer shall be responsible for performing all Integrations in accordance with the Documentation, at Customer's reasonable expense.
4.3 Restrictions on Use. Customer shall not (and shall not authorize or knowingly permit any third party to): (i) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code, algorithms, file formats, or interface protocols of the Platform or of any files contained therein; (ii) copy, modify, adapt, translate, resell, distribute, or sublicense the Platform or the Documentation or make any use thereof not expressly permitted in the Agreement; (iii) make the Platform available on a "service bureau" basis; (iv) remove or modify any proprietary markings or restrictive legends placed on the Platform or the Documentation; (v) use the Platform in violation of the Agreement, the Documentation, or any Applicable Law; (vi) access the Platform or the Documentation in order to build a competitive solution or to assist someone else to build a competitive solution; (vii) generate, permit or knowingly send any Invalid Traffic; or (viii) introduce into the Digital Properties, the Content, the Advertisements, or the Platform any Prohibited Content or Malicious Code.
4.4 Modifications; No Contingency for Future Commitments. Mission Media may, in its sole discretion, provide updates to the Platform from time to time, including without limitation, by adding, deleting, or modifying features to improve the user experience; provided, however, that during the Term, such additions, deletions, or modifications to features will not materially decrease the overall functionality or security of the Platform. Unless otherwise expressly set forth in the Order, Customer agrees that its obligations under the Agreement are not contingent on the delivery of any future functionalities or features or any other future commitments.
4.5 Passwords; Unique Identifiers. Mission Media will provide Customer with account access information, which may include one or more passwords ("Passwords"). Authorized Users may be required to provide certain additional information that will assist in authenticating their identity when they log in in the future ("Unique Identifiers"). When registering for an account with Mission Media, Customer and its Authorized Users must provide true, accurate, current, and complete information. Customer is responsible for the confidentiality and use of its Passwords and Unique Identifiers, as well as for any use, misuse, or communications entered through the Platform by Authorized Users or other third parties using them (unless arising from Mission Media's breach of the Agreement). Customer will promptly inform Mission Media of any need to deactivate a Password or change any Unique Identifier.
4.6 Cooperation. Customer acknowledges that Mission Media's ability to provide the Services is dependent on its having access to (and being able to interact in a timely manner with) Customer's employees and designated third parties and also dependent on Mission Media being provided with (and continuing to receive) complete, accurate, up-to-date, and timely materials, information, and data. Customer agrees to provide such access, materials, information, and data to Mission Media and will cause any designated third parties to cooperate with Mission Media for Mission Media to implement and provide the Services on the schedules adopted by the parties. In performing the Services, Mission Media shall be entitled to rely on any oral or written instructions, notices, or other communications, including electronic transmissions, from Customer and its Authorized Users, employees, officers, directors, members, agents, and other service providers that Mission Media reasonably believes to be genuine, valid, and authorized.
5. ACCESS AND SUPPORT
5.1 Access. Mission Media shall make the Platform accessible to Authorized Users in accordance with the Documentation and the Agreement.
5.2 Service Levels and Support. Mission Media shall use commercially reasonable efforts to make the Platform accessible twenty-four (24) hours per day, seven (7) days per week, 99.9% of the time, except for: (i) scheduled weekly maintenance, with the schedule for such maintenance to be provided to Customer; (ii) required repairs; and (iii) any loss or interruption due to a Force Majeure Event (as defined below). Support is available by email at contact@missionmedia.ai from 9:00 AM to 7:00 PM Eastern Time, Monday through Friday, excluding MissionMedia-Observed Holidays. Mission Media aims to respond to support questions within one (1) business day.
6. FEES AND PAYMENT
6.1 Revenue Share and Taxes. In consideration of Customer making the Inventory available, Mission Media shall pay Customer the Revenue Share set forth in the Order. All amounts are exclusive of Taxes. Each party is responsible for its own Taxes, including any taxes related to its income, property, franchise, or employees. If Mission Media is required by law to withhold any Taxes from a payment, it will do so and provide Customer with evidence of the withholding.
6.2 Statements and Payment. Within fifteen (15) days after the end of each calendar month, Mission Media shall make available to Customer a statement of the Impressions, Net Revenue and Revenue Share for that month. Customer shall invoice Mission Media for the Revenue Share shown on the statement, and unless otherwise set forth in the Order, all amounts are due and payable within one hundred twenty (120) days from Mission Media's receipt of the invoice. Mission Media may deduct from any payment amounts that Buyers have not paid, refunded or charged back, including for Invalid Traffic. Customer must raise any dispute about a statement in writing within sixty (60) days after it is made available.
6.3 Records. Mission Media's measurement of Impressions and Net Revenue is the measurement used for payment. Mission Media will keep reasonable records supporting each statement for twelve (12) months and will answer Customer's reasonable questions about them.
6.4 Required Tax Documentation. Customer will provide to Mission Media an accurate Form W-9 (or applicable Form W-8) before the first payment and upon request.
7. CONFIDENTIALITY; FEEDBACK
7.1 Confidentiality. At all times the Receiving Party will protect and preserve the Confidential Information of the Disclosing Party as confidential, using no less care than that with which it protects and preserves its own highly confidential and proprietary information (but in no event less than a reasonable degree of care), and will not use the Confidential Information for any purpose except to perform its obligations and exercise its rights under the Agreement, including as directed by the Disclosing Party. The Receiving Party may disclose, distribute, or disseminate the Disclosing Party's Confidential Information to any of its officers, directors, members, managers, partners, employees, contractors, or agents (collectively, its "Representatives"), provided that the Receiving Party reasonably believes that its Representatives have a need to know and such Representatives are bound by confidentiality obligations at least as restrictive as those contained herein. Subject to this Section 7.1, the Receiving Party will not disclose, distribute, or disseminate the Confidential Information to any third party, other than its Representatives, without the prior written consent of the Disclosing Party; the Receiving Party will at all times remain responsible for any violations of the Agreement by any of its Representatives. If the Receiving Party becomes or may become legally compelled to disclose any of the Disclosing Party's Confidential Information (whether by deposition, interrogatory, request for documents, subpoena, civil investigative demand, or other process or otherwise), to the extent not prohibited by Applicable Law, the Receiving Party will provide the Disclosing Party prompt prior written notice of such requirement so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Section. If such protective order or other remedy is not obtained or the Disclosing Party waives compliance with the provisions of this Section, the Receiving Party may furnish only that portion of the Confidential Information which it is advised by its counsel is legally required to be disclosed, and will use commercially reasonable efforts to ensure that confidential treatment will be afforded such disclosed portion of the Confidential Information.
7.2 Feedback. During the Term, Customer may elect to provide Mission Media with feedback, comments, and suggestions with respect to the Platform and/or the Services ("Feedback"). Customer agrees that Mission Media will be free to use, reproduce, disclose, and otherwise exploit any and all such Feedback without compensation or attribution to Customer.
8. PRIVACY; DATA
8.1 General. Mission Media shall process Personal Information of Users in accordance with the Agreement, its then-current privacy notice maintained at missionmedia.ai/privacy (the "Privacy Notice"), and the Data Processing Addendum maintained at missionmedia.ai/dataprocessingaddendum (the "DPA"), which are hereby incorporated by reference and shall control in the event of any conflict with the Agreement with respect to the processing of Personal Information.
8.2 Customer Notices and Consents. Customer shall provide all notices and obtain all consents required under Applicable Law (including Privacy Laws) for the collection of Personal Information on the Digital Properties and its disclosure to Mission Media and Buyers for the purposes of the Services, and shall pass to Mission Media any applicable consent or opt-out signals it receives.
9. INTELLECTUAL PROPERTY
9.1 Title. As between Mission Media and Customer: (i) Mission Media retains all right, title, and interest, including, without limitation, all Intellectual Property Rights, in and to the Platform, the Documentation, the Code, and any other materials provided by Mission Media hereunder, and Customer shall have no rights with respect to the same other than those license rights expressly granted under the Agreement; and (ii) Customer retains all right, title, and interest, including, without limitation, all Intellectual Property Rights, in and to the Content, the Distributed Content, and the Digital Properties, and Mission Media shall have no rights with respect to the same other than those license rights expressly granted under the Agreement.
9.2 License to Mission Media. Customer grants Mission Media a non-exclusive, royalty-free license during the Term to use the Distributed Content metadata and Customer's names, logos and show titles solely to describe and sell the Inventory to Buyers and to provide the Services.
10. SUSPENSION AND TERMINATION
10.1 Suspension for Non-Payment. Customer may only suspend making the Inventory available upon thirty (30) days' notice if any undisputed invoiced amount due to it is over thirty (30) days past due. Customer will not suspend while Mission Media is disputing the invoiced amount reasonably and in good faith and is cooperating diligently to resolve the dispute.
10.2 Termination. (a) In the event of a material breach of the Agreement by a party, the other party may terminate the Agreement by giving thirty (30) days prior, written notice to the breaching party; provided, however, that the Agreement shall not terminate if the breach is curable and the breaching party has cured the breach before the expiration of such thirty (30) day period. (b) The Agreement is terminable immediately on written notice by a party if the other party commits a material breach of the Agreement and the breach is not curable or if the other party: (i) voluntarily institutes insolvency, receivership, or bankruptcy proceedings; (ii) is involuntarily made subject to any bankruptcy or insolvency proceeding and such proceeding is not dismissed within ninety (90) days of the filing of such proceeding; (iii) makes an assignment for the benefit of creditors; or (iv) undergoes any dissolution or cessation of business. (c) Each party may terminate the Agreement as set forth in the Order.
10.3 Effect of Termination. In the event of any termination or expiration of the Agreement: (i) each party shall promptly pay the other party for all amounts due and payable by such party hereunder as of the effective date of termination or expiration; (ii) all rights and licenses granted hereunder shall immediately cease; (iii) Customer and its Authorized Users shall immediately cease all access to, and use of, the Platform and the Documentation; (iv) Mission Media shall cease monetization of the Distributed Content and sale of the Inventory; and (v) the Receiving Party will either return to the Disclosing Party (or provide the Disclosing Party with written certification of the destruction of) all documents, computer files, and other materials containing any Confidential Information of the Disclosing Party that are in the Receiving Party's possession, custody, or control.
10.4 Survival. Sections 2, 3, 4.6, 6 (until all monies due and payable hereunder are paid), 7, 8, 9, 10.3, 11.4, 12, 13, and 14 shall survive any expiration or termination of the Agreement.
11. REPRESENTATIONS AND WARRANTIES; DISCLAIMER
11.1 Mutual Representations and Warranties. Each party represents and warrants that: (i) the Agreement constitutes its valid and binding obligation and is enforceable against it in accordance with the terms of the Agreement; and (ii) the execution and delivery of the Agreement by it and the performance of its obligations and exercise of its rights hereunder: (a) will not conflict with or violate any Applicable Law; or (b) are not in violation or breach of, and will not conflict with or constitute a default under, any contract, agreement, or commitment binding upon it, including, without limitation, any non-disclosure, confidentiality, non-competition, or other similar agreement.
11.2 Representations and Warranties of Mission Media. In addition to the representations and warranties set forth in Section 11.1, Mission Media represents and warrants that the Services will be performed in a timely, professional, and workmanlike manner.
11.3 Representations and Warranties of Customer. In addition to the representations and warranties set forth in Section 11.1, Customer represents and warrants that: (i) the Content and Distributed Content do not infringe, violate, or misappropriate any third-party Intellectual Property Rights, privacy rights, or publicity rights, and do not violate any Applicable Law; and (ii) the Inventory does not include Invalid Traffic.
11.4 Disclaimer. MISSION MEDIA DOES NOT REPRESENT THAT: (I) EVERY ERROR IN THE PLATFORM OR EVERY PROBLEM RAISED BY CUSTOMER WILL BE RESOLVED; (II) CUSTOMER WILL ACHIEVE ANY CERTAIN THRESHOLD OF NET REVENUE OR AUDIENCE; OR (III) MISSION MEDIA WILL BE ABLE TO FILL ALL THE INVENTORY WITH ADVERTISEMENTS. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 11.1 AND SECTION 11.2, THE PLATFORM, THE CODE, THEIR COMPONENTS, THE DOCUMENTATION, ANY REPORTING (INCLUDING ANY STATEMENTS), THE SERVICES, AND ALL OTHER MATERIALS, DATA, AND SERVICES PROVIDED BY MISSION MEDIA HEREUNDER ARE PROVIDED "AS IS" AND "AS AVAILABLE," AND MISSION MEDIA MAKES NO WARRANTIES WITH RESPECT TO THE SAME OR OTHERWISE IN CONNECTION WITH THE AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, TITLE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. TO THE EXTENT THAT MISSION MEDIA MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
12. INDEMNIFICATION
12.1 Indemnification by Mission Media. Subject to Section 12.2, Mission Media shall defend, indemnify, and hold harmless Customer and its officers, directors, managers, and employees from any and all liabilities, losses, damages, fines, penalties, costs, and expenses, including reasonable attorneys' fees (collectively, "Losses") incurred by them in connection with any third-party claim, action, or proceeding (each, a "Claim"): (i) arising from Mission Media's gross negligence or willful misconduct; and/or (ii) alleging that the use of the Platform in accordance with the Agreement infringes, violates, or misappropriates any third-party Intellectual Property Rights.
12.2 Exceptions to Mission Media's Indemnification Obligations. Mission Media shall not be obligated to indemnify, defend, or hold harmless the parties set forth in Section 12.1 to the extent that the Claim arises from: (i) use of the Platform in combination with modules, apparatus, hardware, software, or third-party services engaged independently by Customer and not provided by Mission Media; (ii) use of the Platform in a manner that breaches the Agreement or any Applicable Law; or (iii) the alteration or modification of the Platform by a party other than Mission Media.
12.3 Infringement Claims. In the event that Mission Media reasonably determines that the Platform is likely to be the subject of a Claim of infringement, violation, or misappropriation of third-party Intellectual Property Rights, Mission Media shall have the right (but not the obligation), at its own expense and option, to: (i) procure for Customer the right to continue to use the Platform as set forth hereunder; (ii) replace the infringing components of the Platform with other components with the same or similar functionality; or (iii) suitably modify the Platform so that it is non-infringing. If none of the foregoing options is available to Mission Media on commercially reasonable terms, Mission Media may terminate the Agreement without further liability to Customer, in which case Mission Media shall pay Customer all Fees accrued through the effective date of termination. This Section 12.3, together with the indemnity provided under Section 12.1, states Customer's sole and exclusive remedy, and Mission Media's sole and exclusive liability, regarding infringement, violation, or misappropriation of any Intellectual Property Rights of a third party.
12.4 Indemnification by Customer. Customer shall defend, indemnify, and hold harmless Mission Media, its Affiliates, and its and its Affiliates' respective officers, directors, managers, and employees from any and all Losses incurred by them in connection with any Claim: (i) arising from Customer's gross negligence or willful misconduct; (ii) arising from Customer's breach of the Agreement; and/or (iii) alleging that the Content or Distributed Content infringes, violates, or misappropriates any third-party Intellectual Property Rights, privacy rights, or publicity rights, defames a third party, or violates any Applicable Law.
12.5 Procedure for Handling Indemnification Claims. In the event of any Claim for which indemnification is available, the indemnified party shall give prompt written notice of any such Claim to the indemnifying party; provided, however, that the failure of the party seeking indemnification to give timely notice hereunder will not affect rights to indemnification hereunder, except to the extent that the indemnifying party demonstrates actual damage caused by such failure. The indemnifying party shall have the right to control and direct the investigation, defense, and settlement of each such Claim. The indemnified party shall reasonably cooperate with the indemnifying party (at the indemnifying party's sole cost and expense) in connection with the foregoing. The indemnified party may participate in the defense of the Claim with counsel of its own choosing, at its own cost and expense, on a strictly monitoring basis. The indemnifying party shall not enter into any settlement or resolution of any Claim that would constitute an admission of guilt or liability on the part of the indemnified party, without the indemnified party's express prior written consent (such consent not to be unreasonably withheld, conditioned, or delayed).
13. LIMITATION OF LIABILITY
13.1 Liability Exclusion. SUBJECT TO SECTION 13.3, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY (NOR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM SUCH OTHER PARTY'S RIGHTS) FOR CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOST REVENUES OR PROFITS, LOSS OF USE, OR LOSS OF GOODWILL OR REPUTATION) WITH RESPECT TO ANY CLAIMS BASED ON CONTRACT, TORT, OR OTHERWISE (INCLUDING NEGLIGENCE AND STRICT LIABILITY) ARISING OUT OF THE AGREEMENT, REGARDLESS OF WHETHER THE PARTY LIABLE OR ALLEGEDLY LIABLE WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF.
13.2 Limitation of Damages. SUBJECT TO SECTION 13.3, EACH PARTY'S MAXIMUM LIABILITY ARISING OUT OF OR RELATING TO THE AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, OR OTHERWISE), WILL NOT EXCEED THE AGGREGATE AMOUNT OF THE FEES AND REVENUE SHARE PAID AND PAYABLE TO CUSTOMER BY MISSION MEDIA UNDER THE AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM ARISES.
13.3 Exceptions. NOTWITHSTANDING THE FOREGOING, THE EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH IN SECTION 13.1 AND SECTION 13.2 SHALL NOT APPLY TO: (i) A PARTY'S INDEMNIFICATION OBLIGATIONS; PROVIDED, HOWEVER, THAT MISSION MEDIA'S LIABILITY FOR INDEMNIFICATION UNDER SECTION 12.1 SHALL BE CAPPED, IN THE AGGREGATE, AT ONE HUNDRED THOUSAND UNITED STATES DOLLARS (USD$100,000); (ii) A PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; (iii) A PARTY'S FAILURE TO PAY ANY UNDISPUTED SUMS DUE HEREUNDER; OR (iv) CUSTOMER'S BREACH OF SECTION 4.3.
14. GENERAL
14.1 Notices. Unless otherwise specified herein, all notices and other communications between the parties (other than routine operational communications) required or permitted by the Agreement or by Applicable Law, will be deemed properly given, if given by: (i) personal service; (ii) registered or certified mail, postage prepaid, return receipt requested; or (iii) nationally or internationally recognized private courier service to the respective addresses of the parties set forth in the Order or such other address as the respective parties may designate by like notice from time to time. Notices so given shall be effective upon: (a) receipt by the party to which notice is given; or (b) on the fifth (5th) business day following mailing, whichever occurs first.
14.2 Relationship of the Parties. Each party is an independent contractor of the other party. Nothing herein shall constitute a partnership between or joint venture by the parties, or constitute either party the agent of the other.
14.3 Assignment. Neither party may assign or otherwise transfer any of its rights or obligations under the Agreement without the prior, written consent of the other party; provided, however, that each party may, upon written notice to the other party and without the consent of the other party, assign or otherwise transfer the Agreement: (i) to any of its Affiliates; or (ii) in connection with a change of control transaction (whether by merger, consolidation, sale of equity interests, sale of all or substantially all assets, or otherwise). Any assignment or other transfer in violation of this Section shall be null and void. Subject to the foregoing, the Agreement shall be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns.
14.4 Force Majeure. Neither party shall be liable for any failure or delay in the performance of its obligations under the Agreement to the extent such failure or delay or both is caused, directly or indirectly, without fault by such party, by any reason beyond its reasonable control, including, without limitation, fire, flood, earthquake, elements of nature or acts of God, acts of state, acts of war, terrorism, riots, civil disorders, rebellions, revolutions, quarantines, pandemics, embargoes, and other similar governmental action (each a "Force Majeure Event"). Any party so delayed in its performance will promptly notify the other and describe in reasonable detail the circumstances causing such delay. In such event, the performance times shall be extended for a period of time equivalent to the time lost because of the excusable delay; provided, however, if the delay or failure continues for more than thirty (30) consecutive days, the party not relying on the excusable delay may terminate the Agreement upon written notice to the other party.
14.5 Governing Law, Venue. The validity, interpretation, and performance of the Agreement shall be governed by the laws of the State of New York without giving effect to the conflicts of laws provisions thereof. Any disputes, controversies, or claims in connection with or arising out of the Agreement, its negotiation, breach, existence, validity, or termination, shall proceed in a federal or state court located in the State of New York, Borough of Manhattan. Each party hereby irrevocably submits to the exclusive jurisdiction of such courts. Each party irrevocably waives, to the fullest extent permitted by Applicable Law, any objection to the laying of venue in such courts of any legal action or proceeding arising out of or relating to the Agreement and any claim that any such action or proceeding has been brought in an inconvenient forum. Service of process shall be made in any manner allowed by Applicable Law.
14.6 Modification. Any modification to the Agreement must be in a writing signed by both parties or in a writing acknowledged and accepted by both parties (e.g., an e-mail or a click-through modification). Notwithstanding the foregoing, Mission Media may modify these General Terms at any time by posting such modification on Mission Media's website or providing Customer written notice of such modification, including via email, and any such modification shall automatically go into effect thirty (30) days after it is so posted or such written notice is provided (the "Modification Effective Date").
14.7 No Waiver. The rights and remedies of the parties to the Agreement are cumulative and not alternative. No waiver of any rights is to be charged against any party unless such waiver is in writing signed by an authorized representative of the party so charged. Neither the failure nor any delay by any party in exercising any right, power, or privilege under the Agreement shall operate as a waiver of such right, power, or privilege, and no single or partial exercise of any such right, power, or privilege shall preclude any other or further exercise of such right, power, or privilege or the exercise of any other right, power, or privilege.
14.8 Severability. If any provision of the Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of the Agreement will remain in full force and effect, and, if legally permitted, such offending provision will be replaced with an enforceable provision that as nearly as possible effects the parties' intent.
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