Earbank Terms of Service and License Agreement

Dear Earbank Customer:

This Terms of Service and License Agreement (“Agreement”) is a legal agreement between you, which collectively refers to you as an individual, your employer, or client end user on whose behalf you are entering into this agreement (“you”, “your”, “yourself”, “licensee”), and Earbank Inc. (“Earbank”, “we”, “our”). By downloading an audio digital file (the “Clip”) from Earbank, you accept the terms of this Agreement.

YOUR LICENSE

1. Your license to use the Clip. Subject to your compliance with this Agreement and making any required payment, Earbank hereby grants you a royalty-free, non-exclusive, non-transferrable, worldwide, perpetual right to use, modify, and reproduce the Clip solely for editorial use, as described below. You may not use the Clip for any of the prohibited purposes set forth in this Agreement.

Definitions:

Royalty-free. The license fee is paid only once and there is no additional fee for you to reuse the Clip.

Non-exclusive. You do not have exclusive rights to use the Clip. Earbank and/or our suppliers may license the same Clip to other clients, including your competitors.

Non-transferrable. Only you, the licensee, has the right to use the Clip. You are not permitted to transfer, assign, sub-license, distribute, share, gift, sell or lend the license to any third party without written permission from Earbank. You may not share the Clip’s digital file with any third party that does not possess a valid license to use that Clip.

Worldwide. You may use the Clip in any country or territory unless it is prohibited by law in that jurisdiction.

Perpetual. Your license to use the Clip never expires, unless it is terminated by Earbank pursuant to this Agreement.

Editorial use. You may only use the Clip for editorial purposes, i.e., to be used only in connection with events or topics that are newsworthy or of general public interest. You may not use the Clip for commercial or advertising purposes, i.e., to promote or advertise a product or service. Please see Section 27 below for applicable attribution requirements.

2. No music clearances. Clips which contain music have not been cleared for use. You agree to secure any required music clearances and you are solely responsible to pay any fees to publishers, writers, performers, and/or collection societies, which may be required by your jurisdiction and waive any right to seek reimbursement or compensation from Earbank with respect to such fees. Earbank shall have no responsibility or liability for any audible music that is included in any Clip.

PROHIBITED USES

3. No standalone use. You may not sell, share, or distribute the Clip on its own. The Clip must be incorporated into a larger work produced by yourself.

4. No commercial use. You may not use the Clip for commercial or advertising purposes, i.e., to promote or advertise a product or service.

5. No misrepresentation. You may not modify the Clip in a manner that changes the context of the Clip or misrepresents the persons interviewed in the Clip.

6. No illegal use. You may not use the Clip for any purpose which is defamatory, libelous, obscene, illegal, pornographic, or in a manner that violates the rights of any third party.

7. No discriminatory use. You may not use the Clip for any purpose which supports, promotes, or advocates for the discrimination of any person based on race, national or ethnic origin, colour, religion, sex, sexual orientation, age, or mental or physical disability.

8. No sampling. You may not incorporate the Clip in a musical work without written permission from Earbank.

WHO MAY USE THE CLIP?

9. Individual vs. company license. If you do not specify a company name in the billing address at check-out, Earbank will issue an individual license in the name of the person listed on the billing address. If you specify a company name in the billing address at check-out, Earbank will issue a company license to the company specified in the billing address.

10. Individual license holder. Your right to use the Clip belongs to you as a person, and you may not share the Clip with anyone else. Your individual license for a Clip may be used by a company if you own or control at least 25% of that company, but in such an event, you cannot use the Clip as an individual in addition to the company use.

11. Company license holder. If you purchase a company license on behalf of an employer or client end user, the right to use the Clip belongs to the company or client specified in the billing address and may not be used by you (either as an individual or through your company) or any other company or client. In that case, you warrant that you have the legal authority to bind your employer or client to the terms of this Agreement.

12. Subcontractors. You may allow your subcontractors and distributors to use the Clip in any production or distribution process related to your final project or end use, provided that you are responsible for ensuring that such subcontractors and distributors agree to comply with the terms of this Agreement, and will not use the Clip for any other purpose.

13. Non-transferrable license and not a multi-seat license. Except as described above, the license to use the Clip and its associated digital file is non-transferrable as defined in this Agreement. You must obtain permission from Earbank for any other uses of the Clip beyond the one non-transferrable license that is granted to you, including without limitation, obtaining a multi-seat license for the use of the Clip.

TERMINATION OF YOUR LICENSE

14. Termination due to violation of this Agreement. If you violate any of the terms of this Agreement, Earbank, at its sole discretion, may immediately terminate your license to use the Clip, without compensation, by sending written notice of such termination to your email address and/or mailing address on file with Earbank and we reserve the right to seek any remedy against you, whether legal or otherwise. Any ongoing use of the Clip after termination will constitute a violation of this Agreement and the intellectual property and proprietary rights of Earbank and/or Earbank’s suppliers.

15. Termination due to social media policy. If you use the Clip on a social media platform or other third party website which transfers ownership rights in the Clip or results in a use of the Clip that conflicts with this Agreement, your license to use the Clip shall immediately be terminated, and you agree to immediately remove the Clip from the platform or website upon request.

16. Termination due to Clip withdrawal. Earbank will make a reasonable effort to ensure that all Clips are fit for use by licensees, in accordance with this Agreement. However, Earbank reserves the right to withdraw any Clip from our site, at its sole discretion and for any reason. If we need to withdraw the Clip, Earbank will use commercially reasonable efforts to work with you to find a suitable replacement Clip, but if we are unable to do so, Earbank may terminate your license to use the Clip by sending written notice of such termination to your email address and/or mailing address on file with Earbank. In such an event, Earbank’s liability is limited to refunding any license fees paid for the Clip, or a pro-rated portion of the subscription fee you paid to Earbank.

17. Your responsibilities upon termination. Notice of termination is deemed to have been received by you one business day after the notice was sent by Earbank via email, or five business days after the notice was sent via mail. Upon termination of the license, you agree, at your own cost, to immediately stop using the Clip and delete any copies of the Clip in your possession.

WARRANTIES AND REPRESENTATIONS

18. Warranty for authorized use of the Clip. Earbank represents and warrants that Earbank has all necessary rights for Earbank to grant the rights set forth in this Agreement. Your use of the Clip in accordance with this Agreement, in the form delivered by Earbank and excluding any modifications made by yourself, will not infringe or violate any third party intellectual property or proprietary rights, excluding any music included in the Clip for which Earbank provides no warranty.

19. No warranty for metadata. While Earbank has made a reasonable effort to categorize the Clips and describe them with metadata provided by its Clip suppliers, Earbank makes no warranty with respect to the accuracy of the data. Earbank does not warrant the accuracy or reliability of the “suggested transcripts” for each Clip, as they are computer-generated, and may contain errors. Earbank disclaims any responsibility or liability for claims which arise from inaccurate descriptions, metadata, or transcripts.

20. No other warranties. Earbank makes no warranties or representations other than those expressly made in Section 18 of this Agreement. Except as described in Section 18, the Clips are provided “as is” without representations, warranties, conditions of merchantability, or fitness for a particular purpose.

INDEMNIFICATION AND LIMITATION OF LIABILITY

21. Earbank’s indemnification of you. If you are not in breach of this Agreement or any other agreement with Earbank, and as your sole remedy for any claim or threatened claim arising from Earbank’s breach of any representations and warranties in this Agreement, Earbank will defend, indemnify, and hold you harmless up to a maximum aggregate obligation and liability of USD $10,000 per Clip.

22. Prompt notification required for indemnity. Earbank’s indemnification of you is dependent on your prompt notification of Earbank, in writing, about the claim or threat of a claim, no later than five business days after you first learn of the claim or threat of a claim. You agree to fully cooperate with Earbank, which will oversee the handling and defense of the claim. Earbank is not liable for any legal fees you incurred prior to notifying Earbank of the claim or threat of a claim.

23. Modifications may void indemnity. Earbank is not liable for any damages, costs, or losses due to modifications you made to the Clip, or the context in which you use the Clip.

24. Your indemnification of Earbank. You agree to defend, indemnify and hold harmless Earbank and its parent, subsidiaries, affiliates, and Clip suppliers, and each of their respective officers, directors and employees from all damages, liabilities, and expenses (including reasonable legal fees) arising out of or in connection with your use of any Clip outside the scope of this Agreement or any breach or alleged breach by you (or anyone acting on your behalf) of any of the terms of this Agreement or any other agreement with Earbank.

25. Limitation of Liability. Earbank shall not be liable to you or any other person or entity for any punitive, special, indirect, consequential, incidental or other similar damages, costs or losses arising out of this Agreement, even if Earbank has been advised of the possibility of such damages, costs or losses. Earbank shall not be liable for any damages, costs or losses arising out of or as a result of modifications made to the Clip by you or the context in which you have used the Clip. Excluding any indemnification obligations owed under this Agreement, in no event shall Earbank’s liability to you exceed the actual license fees received by Earbank for the use of the Clip.

INTELLECTUAL PROPERTY RIGHTS

26. Copyright ownership. All licensed Clips and metadata are owned by either Earbank or its suppliers. All rights not expressly granted in this agreement are reserved by Earbank and its suppliers.

27. Attribution. If a licensed Clip is used in an audio-visual project where credits are provided for other suppliers of licensed content, you must include the following credit next to the content or in the production credits: “Audio used under license from [Supplier Name]/Earbank.com”. You may use the name of Earbank and/or its suppliers to provide attribution, but may not otherwise use their names or logos without prior written permission.

GENERAL

28. Country of residence. By entering into this Agreement, you confirm that your country of residence is the same as your billing address.

29. Our modifications to this Agreement. Earbank may modify this Agreement at any time. If we make changes to this Agreement, we will make a reasonable effort to notify you, via a message on earbank.com or an email to the email address associated with your Earbank account.

30. Your acceptance of the license agreement. Please check this Agreement before licensing or downloading any new Clips. By licensing or downloading new Clips, you agree to accept the terms of the current version of this Agreement as shown at http://earbank.com/license.

31. Disclosure of licensed users. If you are licensing the Clip on behalf of a client end user, you agree to disclose the contact information for your client to Earbank. You agree that Earbank may disclose your client’s contact information and the details of the license you purchased, to Earbank’s suppliers.

32. User accounts. You agree to maintain the privacy and security of usernames and passwords and will notify Earbank immediately upon discovery of any unauthorized use of your account. You agree to accept responsibility for all activity which occurs under your user account. If Earbank determines you have breached this Agreement, it may suspend or terminate your account, without compensation, and seek other legal remedies.

33. Electronic storage. You agree to maintain appropriate security to protect your copy of the Clip from unauthorized use by third parties. You may make one additional copy of the Clip for backup purposes.

34. Subscriptions. Upon expiration, subscription plans will renew automatically, at the same rate as the original plan. You may disable automatic renewals by contacting Earbank prior to the expiration date. You grant Earbank permission to charge a fee for each automatic renewal, until such time that you disable automatic renewals, as described above.

35. Refund policy. Except where required by law, all sales of Clips and subscriptions are final. If the Clip you received from Earbank is defective, Earbank will replace the Clip with a working copy, or refund the fees you paid to license the Clip.

36. Taxes. You agree to pay and be responsible for any and all taxes and duties, imposed by any jurisdiction, in association with your use of the Clip, including without limitation, any applicable sales taxes.

37. Assignment. You may not assign this agreement to another person or company without written permission from Earbank. Earbank may assign this Agreement, without notice or consent, to any affiliate or successor which agrees to be bound by these terms.

38. Severability. If any individual term of this Agreement is found to be invalid, illegal, or unenforceable, the remaining terms shall remain in full force and effect.

39. Governing law. This Agreement is governed by the laws of the Province of Ontario and the federal laws of Canada, without regard to conflicts of law principles. The parties agree to the exclusive jurisdiction of the courts located in Toronto, Ontario, Canada with respect to any dispute arising from this Agreement.

40. Entire Agreement and Headings. This Agreement constitutes the entire agreement between the parties and it replaces and supersedes any previous agreement or understanding between the parties, whether written or oral. The use of headings in this Agreement is for convenience only and shall not affect the interpretation or construction of this Agreement.

41. How to contact Earbank. Our address and contact information for notifications is: Earbank Inc., 340-157 Adelaide St W, Toronto, ON, Canada, M5H 4E7; Email: service@earbank.com.

Effective date: November 1, 2018