Modulate Order Form

Primary Contact Information
Client				Modulate (“Modulate”)
Client Legal Name (“Client”)				Company Name		Modulate, Inc.
Primary Contact, Title				Primary Contact, Title		Mike Pappas, CEO
Billing Address				Payment Address		One Broadway, 14^th Floor
City / State / Zip				City / State / Zip		Cambridge, MA 02142
Email				Email		mike@modulate.ai
Phone / Fax				Phone / Fax		617-702-2067
Supported Title(s)
Services Provisioned and Associated Exhibits
	License for external usage? (Exhibit A)				Included / Not Included
	License for VoiceWear usage (Exhibit B)				Exhibit B-1 (Commercial) Included / Exhibit B-2 (Trial) Included / Not Included
	License for ToxMod usage (Exhibit C)				Exhibit C-1 (Commercial) Included / Exhibit C-2 (Trial) Included / Not Included
Term Details
	Effective Date:		Termination Date:
	Renewal Term Length:	One (1) month / One (1) year / Three (3) years / Five (5) years / Does not renew
Agreement
The agreement by and between the Client and Modulate (this “Agreement”) consists of (i) this order form (this “Order Form”), (ii) the Service Terms and Conditions (the “Service Terms and Conditions”) attached to this Order Form or to the previous Order Form identified below, and (iii) the exhibits indicated above.

Modulate Service Terms and Conditions

Modulate, Inc. (“Modulate”) provides its software and services to you (“Customer”) subject to the following terms and conditions (the “Agreement”). By clicking a box indicating Customer’s acceptance of this Agreement and the terms of service and conditions set forth herein, or by otherwise using or accessing the Modulate Software (or any portion thereof), Customer agrees that it has read and is bound by this Agreement. If Customer is accepting this Agreement on behalf of a company or other legal entity, Customer represents that it has the authority to bind such entity to this Agreement, in which case the term “Customer” will refer to such entity. If Customer does not have such authority, or if Customer does not agree with this Agreement, Customer must not accept this Agreement and may not use any portion of the Modulate Software. As used herein, “clicking,” “accepting,” “signing,” and any other similar language, shall all refer to Customer’s acceptance of this Agreement regardless of the specific method of consent or acceptance.

1. Definitions. In addition to those terms defined in the body of this Agreement or in the introduction, the following capitalized terms will have the meanings set forth below:

1.1. “Client Software” means Modulate’s proprietary software development kit (“SDK”) and other tools that process live audio streams for purposes such as the detection of toxic behavior or enabling individuals to customize a character’s voice within a Supported Title. Such tools include “Voice Skins”, which are a particular customization of a character’s voice, as may be further specified in attached Exhibits when applicable.

1.2. “Confidential Information” means any non-public information provided by either Party to the other that is identified as confidential in writing at the time of disclosure or should reasonably be considered confidential given the nature of the information and the circumstances of disclosure, including, without limitation, technical data, product plans, customer, user, and financial information, algorithms and presentations, and the terms and conditions of this Agreement. For the avoidance of doubt, all Modulate Software is Confidential Information of Modulate.

1.3. “Exhibit(s)” means any attached exhibit(s), which is/are enumerated in the attached Modulate Order Form and which has been incorporated by reference.

1.4. “Fees” means any amounts or monies owed by Customer to Modulate under this Agreement, including as outlined in any Exhibits attached hereto.

1.5. “Modulate Software” means the Client Software and the Platform.

1.6. “Platform” means Modulate’s administrator console and associated API and other tools that enable the monitoring, alteration, and other processing of audio streams, and which hosts relevant documentation and other resources for the development of applications using the Client Software.

1.7. “Supported Titles” means the games or applications developed by Customer incorporating Client Software. The Supported Titles are listed in the attached Modulate Order Form.

1.8. “Usage Data” means information, analytics, and data that Customer collects about the use of the Modulate Software within their Supported Titles, including but not limited to, how many times a media asset has been requested, error reporting information, and any other information that will help Modulate improve the Modulate Software. “Usage Data” shall not include any personally identifiable information, or any information from which a person could reasonably determine the identity of its source.

2. License Grants.

2.1. Internal License to Customer. Subject to Customer’s compliance with the terms and conditions of this Agreement, Modulate grants Customer a non-exclusive, non-transferable (subject to the provisions in Section 12.1), non-sublicenseable (except as expressly set forth in any applicable licenses referenced in an Exhibit) license, solely to (a) access and use the Platform, and (b) install, run, and use the Client Software internally for the purpose of internal development of the Supported Titles.

2.2. Restrictions. Customer will not (and will not knowingly allow any third party to): reverse engineer, decompile, disassemble, or otherwise attempt to discover any source code or underlying ideas or algorithms of any part of the Modulate Software; or modify, translate or otherwise create derivative works of the Modulate Software or any component thereof; or resell or distribute the Modulate Software, or any component thereof, on a standalone basis. Customer will: (a) comply with any applicable laws, rules, or regulations in connection with its activities under this Agreement; (b) not access, modify, delete, damage, or disable the Modulate Software; and (c) not disrupt, interfere with, or access in an unauthorized manner the Modulate Software. During the Term, Customer shall not execute any agreement with, or receive products or services from, any third party for services or software substantially similar to those provided by Modulate.

2.3. Feedback. Customer acknowledges and agrees that any questions, comments, suggestions, ideas, feedback or other information about the Modulate Software (“Feedback”), provided by Customer to Modulate are non-confidential and Modulate will be entitled to the unrestricted use and dissemination of this Feedback for any purpose, commercial or otherwise, without acknowledgement, attribution, or compensation to Customer.

2.4. Changes. Modulate reserves the right to change the features and functionality of the Client Software upon advanced notice to Customer before the change, and to provide notice to Customer of any material changes to the Client Software that could reasonably require updates to Customer or, to the knowledge of Modulate, the Supported Titles, or for which Modulate will stop supporting or validating the previous version of the Client Software, with Modulate to use commercially reasonable efforts to provide such notice in advance by an amount of time that is at least the lesser value between (a) the length of the current Initial Term or Renewal Term, or (b) three (3) months.

2.5. Export Control Laws. The Modulate Software is subject to U.S. export control laws, including the Export Administration Regulations, of the Bureau of Industry and Security ("BIS"), U.S. Department of Commerce; and the economic sanctions administered by the Office of Foreign Assets Control ("OFAC"), of the U.S. Department of the Treasury. Customer agrees to comply strictly with all such laws and regulations as they relate to the Modulate Software, and, to the extent consistent with this Agreement, to obtain any necessary license or other authorization to export, reexport, or transfer the Modulate Software. Without limiting the foregoing, Customer agrees not to export, reexport, or transfer the Modulate Software to Cuba, Iran, North Korea, Sudan, or Syria; to the governments of these countries, wherever located; to any person or entity identified on BIS's Denied Persons List or OFAC's Specially Designated Nationals List; to any end user with knowledge or reason to know that the Modulate Software will be used for nuclear, chemical, or biological weapons proliferation, or for missile-development purposes; or to any person with knowledge or reason to know that they will export, reexport, or transfer the Modulate Software other than in compliance with the foregoing restrictions.

3. Access and Use of the Platform.

3.1. Member Account, Password and Security. Customer is responsible for maintaining the confidentiality of its password and account, if any, and is fully responsible for any and all activities that occur under its password or account. The Platform may be accessed or used only by the personnel of Customer who are authorized to access the Platform using a user identifier and password provided by Customer (each, a “User”). Customer shall not make available the [Platform] to any person or entity other than Users. Customer is responsible for maintaining the confidentiality of all secure login information, passwords and other information related to Users’ respective accounts at all times. Customer is responsible for its Users’ compliance with the terms and conditions of this Agreement as though they were Customer hereunder and will be responsible and liable for any User’s breach of any such terms and conditions. Customer agrees to (a) immediately notify Modulate of any unauthorized use of Customer’s or User’s password or account or any other breach of security, and (b) ensure that Customer and each User exits from its account at the end of each session when accessing the Platform. Modulate will not be liable for any loss or damage arising from Customer’s or a User’s failure to comply with this section.

3.2. Modifications to Service. Modulate reserves the right to modify or discontinue, temporarily or permanently, the Platform (or any part thereof) with or without notice. Customer agrees that Modulate will not be liable to you or to any third party for any modification, suspension or discontinuance of the Platform.

3.3. General Practices Regarding Use and Storage. Customer acknowledges that Modulate may establish general practices and limits concerning use of the Platform, including without limitation the maximum period of time that data or other content will be retained by the Platform and the maximum storage space that will be allotted on Modulate’s servers on your behalf. Customer agrees that Modulate has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Platform. Customer acknowledges that Modulate reserves the right to terminate accounts that are inactive for an extended period of time. Customer further acknowledges that Modulate reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.

4. Intellectual Property Rights.

4.1. Except as expressly set forth in Sections 2.1 or in any Exhibit, Modulate and its licensors retain all rights, title and interest in and to the Modulate Software, all copies thereof (by whomever produced), all rights therein, and all related documentation and materials. No licenses are granted to Customer except those expressly granted herein.

5. Usage Data.

5.1. As between the Parties, Customer owns all Usage Data. Customer hereby grants to Modulate a non-exclusive, worldwide, royalty-free, fully paid-up, non-sublicensable (except to contractors or consultants providing services on Modulate’s behalf), non-transferable (except pursuant to Section 12.1) right and license during the Term to copy, distribute, display, modify, create derivative works of and otherwise use the Usage Data to (a) perform Modulate’s obligations under this Agreement, and (b) in connection with Modulate’s internal operations and functions, including, but not limited to, improving Modulate’s products and/or services.

5.2. Customer is under no obligation to provide any specific Usage Data beyond that described in any attached Exhibits.

5.3. Each Party shall handle all Usage Data in accordance with applicable laws and regulations. To the extent Modulate possesses or stores personally identifiable information (as that term is defined under applicable law) or non-public personal information (as that term is defined under the Gramm-Leach-Bliley Act of 1996, as amended) in Modulate’s performance under this Agreement, Modulate shall use commercially reasonable industry standard security measures to safeguard against unauthorized access to and use of such personally identifiable information by any individual, computer program, or other unauthorized user. Modulate shall promptly notify Customer of any unauthorized access and/or use of the personally identifiable information. In addition, Modulate shall notify any other person(s) required to be notified by Modulate under any relevant statute, regulation or order.

6. Fees.

6.1. Customer will pay Modulate the Fees, as set forth in any attached Exhibits.

6.2. All payments will be made from a bank located within the United States and in United States dollars. Customer will pay all applicable shipping charges, duties, assessments, taxes (exclusive of taxes on Modulate’s net income) and the like. Any payments more than thirty (30) days overdue will bear a late payment fee of one and a half percent (1.5%) per month, or, if lower, the maximum rate allowed by law. All Fees payable by Customer to Modulate for any calendar month during the Term (or partial calendar month at the end or beginning of the Term) will be paid by Customer to Modulate within thirty (30) days of the end of such calendar month.

Modulate Bank Details: First Republic Bank 111 Pine Street San Francisco, CA 94111 Routing Number: 321081669 ABA/Swift Code: FRBBUS6S

Beneficiary: Modulate, Inc One Broadway, 14th Floor Cambridge, MA 02142 Account No. 80007345657

7. Term and Termination.

7.1. Term. This Agreement will commence on the Effective Date, and continue through the Termination Date, unless terminated early as described herein (the “Initial Term”), after which this Agreement will automatically renew for successive periods, each equal to the Renewal Term Length (each, a “Renewal Term”, and together with the Initial Term, the “Term”) unless either Party provides notice to the other Party (a) ninety (90) days if the Renewal Term Length is one (1) year or greater, or (b) thirty (30) days if the Renewal Term Length is less than one (1) year, in each case prior to the end of the then-current term. If no Renewal Term Length (or “None” or “Does not renew”) is selected, this Agreement will automatically terminate at the end of the Initial Term and may only be extended by mutual written agreement by the Parties.

7.2. Notice of Material Breach or Default. If either Party commits a material breach or default in the performance of any of its obligations under this Agreement, then the other Party may give the defaulting Party written notice of the material breach or default (including a statement of the facts relating to the material breach or default, the provisions of this Agreement that are in material breach or default, and the action required to cure the material breach or default). Without limiting the foregoing, any failure by Customer to timely pay to Modulate any amounts owing under this Agreement will constitute a material breach of this Agreement.

7.3. Termination for Insolvency. Either Party may terminate this Agreement, effective immediately, if the other Party files a petition for, or has a petition filed against it for, voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property (provided, that, if such proceeding is involuntary, it is not dismissed within sixty (60) days of its institution).

7.4. Notice of Termination. If the defaulting Party fails to cure a material breach or default specified in any notice under Section 7.2 within thirty (30) days after receipt of such notice (or such later date as may be specified in such notice), then the non-defaulting Party may terminate this Agreement by giving the defaulting Party written notice of termination.

7.5. Effects of Termination. Upon expiration or termination of this Agreement, Customer will immediately cease use of the Modulate Software, disable use of the Client Software in all Supported Titles, and delete all copies of the Modulate Software in its possession or under its control, and Customer will return to Modulate all copies of Modulate's Confidential Information.

7.6. Survival. The following sections of these Service Terms and Conditions shall survive any expiration or termination of this Agreement: 1, 2.2, 2.3, 4, 7.5, 7.6, 8, 9, 10, 11, and 12. In addition, the specific sections identified in the incorporated exhibits, if any, shall also survive any expiration or termination of this Agreement.

8. Confidentiality.

8.1. Exclusions. Confidential Information shall not include, to the extent shown by the receiving Party, information previously known to the receiving Party or materials to which the receiving Party had access prior to the provision of such information or materials by the disclosing Party; information or materials that are now or later become publicly known without breach of this Agreement by the receiving Party; information or materials provided to the receiving Party by a third party who, to the knowledge of the receiving Party, was not bound by a duty of confidentiality to the disclosing Party; or information independently developed by the receiving Party without any use of Confidential Information.

8.2. General Obligation. Each Party will (a) hold the Confidential Information of the other Party in strict confidence; (b) protect and safeguard the confidentiality of such Confidential Information with at least the same degree of care as the receiving Party uses to protect and safeguard its own confidential and proprietary information (but in no event with less than a reasonable degree of care); (c) immediately notify the disclosing Party of any unauthorized access, use, or disclosure of any such Confidential Information; (d) cooperate with the disclosing Party’s efforts to prevent further breaches of this Section 8; and only use such Confidential Information to exercise its rights or fulfill its obligations under this Agreement.

8.3. Disclosure to Representatives. The receiving Party may only disclose or disseminate the disclosing Party’s Confidential Information to the receiving Party and its affiliates’ employees and contractors who have a need to know and the receiving Party’s professional advisers (e.g., lawyers and accountants), in each case, during the time that the receiving Party is permitted to retain such Confidential Information hereunder; provided that any and all such employees and consultants are bound by written agreements or, in the case of professional advisers, ethical duties, respecting the Confidential Information in the manner set forth in this Agreement.

8.4. Survival. The obligations pursuant to this Section 8 shall survive the termination of this Agreement for the longer of (a) five (5) years, and (b) for Confidential Information that is being protected as a trade secret, for so long as the Confidential Information is being protected as such.

8.5. Disclosure. Notwithstanding anything to the contrary herein, the receiving Party may disclose the disclosing Party’s Confidential Information as required by judicial process or otherwise by law; provided that, prior to such disclosure and subject to applicable laws, the receiving Party shall: promptly notify the disclosing Party of any actual or threatened legal compulsion of disclosure, and any actual legal obligation of disclosure, and cooperate with the disclosing Party’s reasonable, lawful efforts to resist, limit or delay disclosure.

9. Limitation of Liability. EXCEPT FOR LIABILITY ARISING FROM A PARTY’S BREACH OF SECTION 2, 4, OR 8, A PARTY’S BREACH OF ANY LICENSE GRANT CONTAINED IN AN EXHIBIT, OR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY UNDER ANY THEORY OF LIABILITY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE FORESEEABLE) ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. EXCEPT FOR LIABILITY ARISING FROM A PARTY'S BREACH OF SECTION 2, 4, A PARTY’S BREACH OF ANY LICENSE GRANT CONTAINED IN AN EXHIBIT, OR 8, OR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10, AND A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL EITHER PARTY’S LIABILITY TO THE OTHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNTS PAID BY CUSTOMER TO MODULATE UNDER THIS AGREEMENT OVER THE PRECEDING TWELVE (12) MONTHS.

10. Indemnification.

10.1. Modulate Indemnification:

(a) Modulate will defend at its expense any third-party claim, suit or proceeding (each a “Claim”) brought against Customer and its officers, directors, employees, and agents (“Customer Indemnified Parties”) by any third party in the United States to the extent such Claim is based upon (i) claims that the Modulate Software infringes such third party’s patents in the United States, or copyrights or trade secrets, or (ii) Modulate’s gross negligence or willful misconduct. Modulate shall pay all costs and damages awarded against any Customer Indemnified Party by a court of competent jurisdiction, and settlement amounts agreed to by Modulate, as a result of any such Claim; provided, however, that Customer (x) promptly notifies Modulate in writing of such Claim; (y) promptly gives Modulate the right to control and direct the investigation, preparation, defense, and settlement of such Claim, with counsel of Modulate’s own choosing (provided that Customer shall have the right to reasonably participate, at its own expense, in the defense or settlement of any such Claim); and (z) gives assistance and full cooperation for the defense of same.

(b) If in Modulate’s opinion, the Modulate Software might be held to infringe as set forth above, Modulate may, at its option, replace or modify the Modulate Software so as to avoid infringement, procure the right for Customer to continue to use the Modulate Software or terminate this Agreement without liability along with all then-existing licenses to the Modulate Software; provided, that Modulate will be obligated to continue to indemnify Customer under this Section 10.

(c) Notwithstanding the foregoing, Modulate will have no obligation under Section 10.1 or otherwise with respect to any infringement claim based upon any unauthorized use of the Modulate Software (including any unauthorized reproduction or distribution of any component of the Modulate Software) or any breach of this Agreement by Customer; any combination of elements of the Modulate Software with other products, equipment, software, uses or data, to the extent such claim would not have arisen absent such combination; any modification of the Modulate Software by any person other than Modulate or its authorized agents or contractors or any activity after Modulate has provided Customer with a work around or modification that would have avoided such issue.

10.2. Customer Indemnification.

(a) Customer will defend at its expense any Claim brought against Modulate, its licensors and each of their respective officers, directors, employees, and agents (“Modulate Indemnified Parties”) by any third party in the United States to the extent such Claim arises out of (a) the marketing, use or other exploitation of the Modulate Software by Customer that is not expressly permitted by this Agreement (except to the extent covered by Modulate’s indemnity obligations under Section 10.1, (b) the exercise of any rights granted to Modulate by Customer in or to the Usage Data in accordance with this Agreement, (c) Customer’s gross negligence or willful misconduct, or (d) a breach of any of Customer’s representations or warranties under Section 11.1 or 11.2. Customer shall pay all costs and damages awarded against the applicable Modulate Indemnified Party by a court of competent jurisdiction, and settlement amounts agreed to by Customer, as a result of any such Claim; provided, however, that such Modulate Indemnified Party (x) promptly notifies Customer in writing of such Claim; (y) promptly gives Customer the right to control and direct the investigation, preparation, defense, and settlement of such Claim, with counsel of Customer’s own choosing (provided that Modulate shall have the right to reasonably participate, at its own expense, in the defense or settlement of any such Claim); and (z) gives assistance and full cooperation for the defense of same.

(b) Customer will fulfill any further Customer Indemnity obligations defined in any applicable Exhibits attached to this Agreement.

11. Representations and Warranties

11.1. Each of Customer and Modulate represents and warrants to the other that it has the required power and authority to enter into this Agreement and to perform its obligations hereunder; the execution of this Agreement and performance of its obligations hereunder do not and will not violate any other agreement to which it is a party; and this Agreement constitutes a legal, valid, and binding obligation when signed by both Parties.

11.2. Customer represents and warrants to Modulate that Customer’s use of the Modulate Software will be solely in accordance with this Agreement and any applicable law, rule or regulation; and Customer has all rights necessary to grant to Modulate the rights to use the Usage Data as set forth herein.

11.3. Modulate represents and warrants to Customer that the Modulate Software will substantially conform with the specifications for the Modulate Software provided in writing by Modulate to Customer, and Modulate will not include in the Modulate Software any computer code that intentionally disrupts, disables or damages the operation of a network or computer system or any component thereof. In the event of a breach of the foregoing warranties, Modulate’s sole obligation, and Customer’s sole remedy, will be for Modulate to use commercially reasonable efforts to correct the Modulate Software. If Modulate cannot, or determines that it is not practical to, make these corrections, Modulate may terminate the License and the price paid for the affected portions of the Modulate Software by Customer will be refunded to Customer.

11.4. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, THE MODULATE SOFTWARE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. FURTHER, MODULATE DOES NOT WARRANT RESULTS OR USE OR THAT THE MODULATE SOFTWARE IS ERROR-FREE OR THAT ITS USE WILL BE UNINTERRUPTED.

12. General.

12.1. Assignment. Neither Party may assign or transfer this Agreement (or any of its rights or obligations under this Agreement) without the other Party’s prior written consent, except that consent to assign will not be required in the context of a merger, acquisition, change of control or sale of all or substantially all of a Party’s assets to which this Agreement relates. Any attempted assignment or transfer without complying with the preceding sentence will be void. This Agreement inures to the benefit of and is binding upon the Parties and their respective legal representatives, successors, and permitted assigns.

12.2. Entire Agreement; Amendments. This Agreement supersedes all prior discussions and writings (including for clarity all white papers and marketing materials), and constitutes the entire agreement, between the Parties with respect to the Modulate Software. The Parties may only amend this Agreement in a writing executed by an authorized representative of each Party. No employee, agent, or other representative of Modulate has any authority to bind Modulate with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement.

12.3. Governing Law; Venue. This Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts. Each of the Parties hereby irrevocably and unconditionally consents to submit to the sole and exclusive jurisdiction of the courts of the Commonwealth of Massachusetts and of the United States of America located in the Commonwealth of Massachusetts for any litigation among the Parties arising out of or relating to this Agreement.

12.4. Irreparable Harm. The Parties agree that any actual or threatened breach of this Agreement by the other Party would cause immediate and irreparable harm to a Party hereof, the value of which would be difficult or impossible to determine and for which monetary damages would be inadequate compensation. Accordingly, in addition to any other remedies, the Party without breach of this Agreement will be entitled to obtain injunctive relief or specific performance from any court of competent jurisdiction to prevent any such breaches and the Party with breach of this Agreement expressly waives: (a) the defense that monetary damages would be adequate compensation for the other Party; (b) the defense that the harm to the Party with breach of this Agreement and/or to others would outweigh the harm to the Party without breach of this Agreement.

12.5. Notices. To be valid, all notices permitted or required under this Agreement must be sent in writing, via certified mail, by a Party to the other Party at the address set forth in the Order Form. Notices will be deemed given on receipt by the applicable Party.

12.6. Relationship. This Agreement does not confer any third-party beneficiary rights and does not create a joint venture, agency, partnership, or other form of joint enterprise between the Parties. Except as expressly provided herein, neither Party has the right, power, or authority to create any obligation or duty, express or implied, on behalf of the other. There are no intended third-party beneficiaries of this Agreement.

12.7. Severability, Waiver, and Interpretation. If any provision of this Agreement is found to be unenforceable or invalid, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole and, in such event, such provision is to be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law. No waiver of any breach of this Agreement will constitute a waiver of any other breach. In construing or interpreting the terms of this Agreement: (a) the headings in this Agreement are for convenience only, and are not to be considered, and (b) no presumption is to operate in either Party’s favor as a result of its counsel’s role in drafting this Agreement.

12.8. Counterparts. This Agreement may be executed in any number of identical counterparts, each of which will be deemed an original and all of which will be construed as and constitute the same agreement. This Agreement may also be executed and delivered by facsimile and such execution and delivery will have the same force and effect of an original document with original signatures.

EXHIBIT A

EXTERNAL USAGE TERMS

1. “End Users” means individual end users of the Supported Titles who have entered into an end user license agreement with Customer, which contains, at a minimum, terms and conditions at least as protective of Modulate and the Client Software as those set forth on below.

2. External License to Customer. Subject to Customer’s compliance with the terms and conditions of this Agreement, Modulate grants Customer a non-exclusive, non-transferable (subject to the provisions in Section 12.1 of the Service Terms and Conditions), non-sublicenseable (except as pursuant to Section 3 of this Exhibit A) license, solely to market, resell and distribute to End Users the Client Software as embedded within the Supported Titles, and to permit such End Users to install, run and use the Supported Titles solely for their personal, non-commercial use.

3. Sublicensing to End Users. Prior to delivery of a Supported Title to any End User, Customer will enter into an end user license agreement with such End User, which contains, at a minimum, terms and conditions at least as protective of Modulate and the Client Software as those set forth below. Customer will not sublicense any of the rights and licenses granted to it hereunder except as expressly set forth herein.

4. Use of Company Names. Modulate may identify Customer in its sales materials or press releases provided that such materials are approved in writing in advance by Customer, such approval not to be unreasonably withheld or delayed. Customer may identify Modulate as the supplier of the Client Software in Customer’s advertising and marketing materials provided that such materials are approved in writing in advance by Modulate, such approval not to be unreasonably withheld or delayed.

5. Customer Warranties. Customer represents and warrants to Modulate that Customer has provided all required End User notices, obtained all necessary End User consents, and has all rights necessary to grant to Modulate the rights to use the Usage Data (and, if defined in this agreement, the User Content) as set forth herein, including but not limited to improving the Modulate Software.

6. Customer Indemnification Regarding End Users. Customer will defend at its expense any Claim brought against Modulate Indemnified Parties by any third party in the United States to the extent such Claim arises out of the marketing, use or other exploitation of the Modulate Software by Customer’s End Users that is not expressly permitted by this Agreement (except to the extent covered by Modulate’s indemnity obligations under Section 10.1 of the Service Terms and Conditions). Customer shall pay all costs and damages awarded against the applicable Modulate Indemnified Party by a court of competent jurisdiction, and settlement amounts agreed to by Customer, as a result of any such Claim; provided, however, that such Modulate Indemnified Party (x) promptly notifies Customer in writing of such Claim; (y) promptly gives Customer the right to control and direct the investigation, preparation, defense, and settlement of such Claim, with counsel of Customer’s own choosing (provided that Modulate shall have the right to reasonably participate, at its own expense, in the defense or settlement of any such Claim); and (z) gives assistance and full cooperation for the defense of same.

7. Minimum Terms for End Users Each End-User must agree in writing to terms which are materially no less protective of Modulate’s rights than those set forth below. Any references to “Modulate” below may be made by referencing “[Customer’s] licensor[s]” in the End-User agreements.

a. Title and Protection. Modulate retains all right, title and interest to any and all Client Software incorporated into an Supported Titles. Modulate owns all worldwide right, title and interest in and to the Modulate Software. End-User will not delete or alter the proprietary rights notices appearing on the Client Software or documentation.

b. Exclusions. End-User will not, and will not permit any third party to: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Client Software (except to the extent such restrictions are contrary to applicable law); (b) modify, translate, or create derivative works based on the Client Software; (c) use the Client Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; (d) provide access to the Client Software to any person who is not an authorized user; (e) remove any proprietary notices or labels; (f) use the Client Software to build a similar or competitive product or service; (g) use the Client Software to impersonate any person or entity, or falsely state or otherwise misrepresent your or their affiliation with a person or entity; or (h) otherwise use the Client Software in a manner inconsistent with the End-User Agreement

c. Export. End-User will not export, re-export, or import the Client Software without the appropriate United States or foreign government licenses.

d. Indemnification. End-User will defend at its expense any Claim brought against Customer, its licensors (direct and indirectly through multiple tiers) and each of their respective officers, directors, employees, and agents (“Customer Indemnified Parties”) by any third party in the United States to the extent such Claim arises out of (a) the use or other exploitation of the Client Software by the End-User that is not expressly permitted by the End-User agreement, including End-User’s breach of the “Exclusions” Section above, and (b) End-User’s gross negligence or willful misconduct. End-User shall pay all costs and damages awarded against the Customer Indemnified Parties by a court of competent jurisdiction, and settlement amounts agreed to by End-User, as a result of any such Claim; provided, however, that the applicable Customer Indemnified Party (x) promptly notifies End-User in writing of such Claim; (y) promptly gives End-User the right to control and direct the investigation, preparation, defense, and settlement of such Claim, with counsel of End-User’s own choosing (provided that such Customer Indemnified Party shall have the right to reasonably participate, at its own expense, in the defense or settlement of any such Claim); and (z) gives assistance and full cooperation for the defense of same.

e. Disclaimer of Liability. The End-User agreement must state that Modulate and its suppliers and licensors disclaim any warranty of any kind directly to End-User, including any warranty of title, merchantability, fitness for a particular purpose or non-infringement.

f. Warranty. The End-User agreement must disclaim Modulate’s and its suppliers’ and licensors’ liability for any damages directly to the End-User, whether direct or indirect, incidental or consequential, arising in connection with the End-User agreement and/or the End-User’s use of the Client Software.

g. Third Party Beneficiary. Modulate is an intended third-party beneficiary of the End-User agreement.

8. Survival The following sections of this Exhibit A shall survive any expiration or termination of the Agreement: 1, 4, 6, and 8.

EXHIBIT C-2

TOXMOD TRIAL TERMS

1. License to Modulate. By uploading, posting, publishing or displaying (hereinafter, “uploading”) any code, video, images, information, data, text, software, music, sound, photographs, graphics, messages or other materials (“User Content”) to the Platform, Customer hereby grants Modulate a non-exclusive, worldwide, royalty-free, fully paid-up, transferable, sublicenseable, perpetual and irrevocable license to copy, display, upload, perform, distribute, store, modify and otherwise use Customer’s User Content as reasonably necessary for Modulate to perform under this Agreement, including for the general improvement of the Modulate Software.

2. Restrictions. Customer will comply with any applicable laws, rules, or regulations in connection with its activities under this Agreement, including providing all required privacy and other notices and obtaining all necessary consents and authorizations for Modulate to use the User Content to perform its obligations under this Agreement.

3. ToxMod Fees. The “Fees” shall include, but not necessarily be limited to, the “Trial ToxMod Fees”, which include any fees described in the following:

a. Trial Fee. Customer will owe no fees to Modulate for the trial usage as outlined in this Agreement, unless Customer executes a separate agreement with Modulate to raise the Usage Cap outlined below.

b. Trial Usage Hours. “Trial Usage Hours” shall mean the total number of hours of audio processed by the Modulate Software during the Term. The Trial Usage Hours shall be displayed to Customer at all times within the web console of Modulate’s platform. In some cases, Modulate, in its sole discretion may omit certain audio (such as pure silence) from the calculation of Trial Usage Hours.

c. Usage Cap. Should the Trial Usage Hours reach or exceed 1,000 hours, Modulate may, at its sole discretion, choose to immediately stop processing any further audio. In no case shall this decision impact Customer’s ability to view and respond to previously-processed audio through the rest of the Modulate Platform.

4. Survival The following section of this Exhibit C-2 shall survive any expiration or termination of the Agreement: 1.