Version: 1.0 Posted/Revised: DATE

PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY CLICKING THE “ACCEPTED AND AGREED TO” ICON, CUSTOMER AGREES TO THE TERMS, CONDITIONS AND OBLIGATIONS CONTAINED WITHIN THIS TERMS OF SERVICE AGREEMENT AND SUBSEQUENT REVISIONS MADE IN ACCORDANCE WITH THIS TERMS OF SERVICE AGREEMENT.

This Terms of Service Agreement (“Agreement”) constitutes a legally binding agreement by and between Media Whisper, LLC, a Texas Limited Liability Company whose principal place of business is located at 833 9TH Ave South, Nashville, TN 37203 (“Vendor”) and ________________________________ , a __________________________________________________________________, with its principal place of business at _____________________________________________________________. This Agreement shall be effective as of the date the Customer clicks “Accepted and Agreed To” (“Effective Date”).

EACH PARTY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS, AND THAT THE PERSON SIGNING ON ITS BEHALF HAS BEEN AUTHORIZED TO DO SO. THE PERSON EXECUTING THIS AGREEMENT ON CUSTOMER’S BEHALF REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND CUSTOMER TO THESE TERMS AND CONDITIONS.

1. VENDOR RESPONSIBILITIES

1. Provision of Purchased Services. During the term of this Agreement, Customer may access and use Vendor’s {Social Media Post Generation} Service (“Service”) pursuant to the terms and conditions of this Agreement and in accordance with any documentation provided as well as any terms and conditions posted on the Vendor’s website at www.backstagesocial.com, as such policies may be updated from time to time. Vendor retains all right, title, interest in and to the Service, including and without limitation to all software, data, know-how, and programming used to provide the Service and all logos and trademarks reproduced through the Service, and this Agreement does not grant Customer any intellectual property rights in the Service or any of its components.

1. Exceptions. Except as otherwise provided in this Agreement, Vendor will utilize commercially reasonable efforts to make the Service available to Customer twenty-four (24) hours per day, seven (7) days per week, except for: (a) any planned downtime (of which Vendor will provide electronic notice), and (b) any unavailability or downtime cause by or related to circumstances beyond Vendor’s reasonable control including, but without limitation, acts of God, act of government, flood, fire, earthquake, pandemic, civil unrest, act of terror, strike or other labor problem (other than one involving Vendor’s employees), Internet service provider failure or delay, or denial of service attack.

1. Service. In the event of an outage or disruption of service not addressed in Section 1.2 of this Agreement, Customer shall promptly notify Vendor in accordance with the provisions of this Agreement (I think you should set up an outage “hotline” email for this purpose)(support@backstagesocial.com). Upon such notice, Vendor shall utilize commercially reasonable efforts to remedy such outage. IN THE EVENT VENDOR IS UNABLE TO DO SO, VENDOR’S SOLE RESPONSIBILITY TO CUSTOMER IS A PRORATION OF CUSTOMER’S FEES FOR THE DURATION OF THE OUTAGE. CUSTOMER EXPRESSSLY ACKNOWLEDGES THAT THIS PRORATION WILL BE APPLIED ONLY TO OUTSTANDING OR FUTURE INVOICES. Vendor is not required to issue refunds or make payments to Customer, including without limitation after termination of this Agreement.

1. Revisions. Vendor may revise the features and functions associated with the Service or this Agreement at any time and at its sole discretion, including without limitation removing features and functions. After any such revision, Customer may notify Vendor in accordance with this Agreement, that such revision impairs their ability to utilize the Services. In the event Vendor is unable to provide Customer with a commercially viable alternative or restore the Service provided prior to the revision within thirty (30) days, Customer may terminate this agreement regardless of the Term.

2. PAYMENT AND TERM

2.1. Fees. Customer shall pay Vendor the fee as set forth by Customer’s chosen Fee Arrangement for each Term (“Fees”). Regardless of whether Customer has chosen monthly or annual Fees, Vendor’s invoices are due within fifteen (15) days of issuance. For late payment, Customer shall pay interest charges from the time payment was due at that the rate that is the lower of ten percent (10%) per month or the highest rate permissible under applicable law. Unless as expressly provided in this Agreement, Vendor will not be required to refund the Fees under any circumstances.

2.2. Taxes. Amounts due under this Agreement are payable to Vendor without deduction and are net of any tax, tariff, duty, or assessment imposed by any government authority (national, state, provincial, or local), including without limitation any sales, use, excise, ad valorem, property, withholding, or value added tax withheld at the source. If Vendor has the legal obligation to pay or collect taxes for which Customer is responsible under this section, Vendor will invoice Customer and Customer will pay that amount unless Customer provides Vendor with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Vendor is solely responsible for taxes assessable against it based on its income, property and employees.

2.3. Term. The Term of this Agreement shall be specified upon Customer’s choosing of Fee Structure. The Term shall automatically renew for a Term equal to the Term in accordance with the Customer’s originally chosen Fees. Notwithstanding anything to the contrary, any renewal in which subscription length for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.

2.4. Termination. Except as otherwise provided in this Agreement, either party may terminate the Agreement for cause (i) upon thirty (30) days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation or assignment for the benefit or creditors.

3. CUSTOMER’S RESPONSIBILITIES AND RESTRICTIONS

3.1. Acceptable Use. Customer shall comply with all of the terms and conditions of this Agreement as well as any additional terms and conditions posted on Vendor’s website at www.backstagesocial.com. Customer shall not (a) use or utilize the Services in such a manner that would allow or permit a third-party to access or exploit the Service; (b) provide passwords or other log-in information to any third-party; (c) share any non-public information related to the Service features or content with any third-party; (d) access the Services for the purposes of building, reverse-engineering, manipulating, or otherwise creating a competitive product or service, to build a product or service using similar ideas, features, functions or graphics of the Service, or to copy ideas, feature, functions, know-how, or graphics of the Service; or (e) engage in web scraping or data scraping on or related to the Service, including without limitation collection of any information through any software or service that simulates human activity or any bot or web crawler. In the event that Vendor suspects any breach of the requirements of this Section 3.1, including without limitation by Users, Vendor may suspend Customer’s access to the Service without advanced notice, in addition to such other remedies as Vendor may have. Neither this Agreement nor any applicable terms and conditions posted at www.backstagesocial.com requires that Vendor take any action against Customer or any User or other third party for violating the applicable terms and conditions, this Section 3.1, or this Agreement, but Vendor is free to take any such action it sees fit.

3.2. Unauthorized Access. Customer shall take reasonable steps to prevent unauthorized access to the Service, including without limitation by protecting its passwords and other log-in information. Customer shall notify Vendor immediately of any known or suspected unauthorized use of the System or breach of its security and shall use best efforts to stop said breach.

3.3. Compliance with Laws. In its use of the System, Customer shall comply with all applicable laws, regulations, orders and guidelines including without limitation laws governing the protection of personally identifiable information and other laws applicable to the protection of personal or private information.

3.4. Customer Data Input. Without limiting any other provision of this Agreement, Customer expressly acknowledges that the Service is intended to create content for public consumption and is generated based upon customer data input. As such, Customer understands and agrees that it is Customer’s obligation to ensure that the data input and any content generated by the Service: (a) is accurate; (b) does not violate any privacy laws or regulations regarding the disclosure of personally identifiable information or other personal or private information; (c) does not violate any restrictions, confidentiality obligations, trademarks, copyrights, or other protections afforded to third-parties (d) does not violate the Terms of Service, usage requirements, or other terms for the third-party platforms Customer chooses to utilize as they may exist at the time of Customer’s usage of such third-party platforms.

3.5. Indemnification. Customer will defend, indemnify and hold harmless Vendor, including the payment of attorney fees, from any claim from any party related to the disclosure of any information that violates the terms of this Agreement or violates Sections 3.3 or 3.4.

4. PROPRIETARY RIGHTS AND LICENSES

4.1. Reservation of Rights. Vendor retains all right, title, and interest in and to the Service, including and without limitation all software, code, and know-how used to provide the Service and all graphics, user interface, logos and trademarks produced through the Service. This Agreement does not grant Customer any intellectual property license or rights in or to the System or any of its components. Customer recognizes that the System and its components are protected by copyright and other laws. No rights are granted to Customer hereunder other than as expressly set forth herein.

4.2 License to Customer. For as long as Customer remains current on its payment of Fees and is in compliance with the terms and conditions of this Agreement and any applicable terms and conditions posted at www.backstagesocial.com, Vendor grants to Customer a worldwide, limited-term, royalty-free license to utilize logos, trademarks, or service marks on the documentation created through the Service.

5. LIMITATION OF LIABILITY

5.1. Limitation of Liability. EXCEPT FOR DAMAGES RESULTING FROM UNAUTORIZED USE OR DISCLOSURE OF CONFIDENTIAL INFORMATION, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE MONTH PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT OR PRODUCT LIABILITY AND REGARDLESS OF THE THEORY OF LIABILITY OR THE FORESEEABILITY OF DAMAGES, BUT WILL NOT LIMIT CUSTOMER’S AND ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES” SECTION ABOVE.

UNDER NO CIRCUMSTANCES SHALL VENDOR BE RESPONSIBLE FOR ANY DAMAGES ARISING FROM OR RELATED TO ANY DETERMINATION FROM A THIRD-PARTY PLATFORM THAT A CUSTOMER HAS VIOLATED ITS TERMS OF USE OR USAGE REQUIREMENTS OR PROTOCOL.

5.2 Severability of Actions. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT EACH AND EVERY PROVISION OF THIS AGREEMENT WHICH PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED BY THE PARTIES TO BE SEVERABLE. If applicable law limits the application of the provisions of this Section 4, Vendor’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, Vendor’s liability limits and other rights set forth in this Section 4 apply likewise to Vendor’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.

5.3 Customer’s Remedies. Customer’s sole and exclusive remedies for any damages or loss in any way connected with the Software or Services furnished by Vendor and its licensors, whether due to Vendor’s negligence or breach of any other duty, shall be, at Vendor’s option; (i) to bring the performance of the Software into substantial compliance with the functional specifications; (ii) re-performance of the Services; or (iii) if Vendor is unable to accomplish (i) or (ii) using its commercially reasonable efforts within a reasonable period of time, return of an appropriate portion of any payments made by Customer with respect to the applicable portion of the Software or Services.

6. CONFIDENTIAL INFORMATION

6.1. Confidential Information. Confidential Information shall include: (i) any document Vendor marks “Confidential”; (ii ) any information Vendor orally designates as “Confidential” at the time of disclosure; (iii) any information or documentation related to the use of the Service; (iv) any information, software, data, coding, knowledge, or know-how derived from or related to the Service; (v) any business plans, pricing, manuals, supplemental documentation related to the Service, service content, or communication between Vendor and customer; and (vi) any other nonpublic, sensitive information Customer should reasonably consider a trade secret or otherwise confidential, Notwithstanding the foregoing, Confidential Information does not include information that: (1) is in Customer’s possession at the time of disclosure; (2) is independently developed by Customer without use of or reference to Confidential Information; (3) becomes known publicly, before or after disclosure, other than as a result of Customer’s improper action or inaction; or (4) is approved for release in writing by Vendor. Customer is on notice that the Confidential Information may include Vendor’s valuable trade secrets.

6.2. Nondisclosure. Customer shall not use Confidential Information for any purpose other than for utilization of the Services for Customer’s benefit (“Purpose”). Customer: (a) shall not disclose Confidential Information to any employee or contractor of Customer unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Customer with terms no less restrictive than those of this Section 6; and (b) shall not disclose Confidential Information to any other third party without Vendor’s prior written consent. Without limiting the generality of the foregoing, Customer shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Customer shall promptly notify Vendor of any misuse or misappropriation of Confidential Information that comes to Customer’s attention. Notwithstanding the foregoing, Customer may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Customer shall give Vendor prompt notice of any such legal or governmental demand and reasonably cooperate with Vendor in any effort to seek a protective order or otherwise to contest such required disclosure, at Vendor’s expense.

7. REPRESENTATIONS AND WARRANTIES.

7.1. From Vendor. Vendor represents and warrants that it is the owner of the System and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights to use the System set forth in this Agreement without the further consent of any third party. Vendor’s representations and warranties in the preceding sentence do not apply to use of the System in combination with hardware or software not provided by Vendor.

7.2 From Customer. Customer represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (b) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the System; and (c) it is an entity authorized to do business pursuant to applicable law.

7.3 Warranty Disclaimers. Except to the extent set forth in Section 7.1 of this Agreement CUSTOMER ACCEPTS THE SYSTEM “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) VENDOR HAS NO OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER OR USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (b) VENDOR DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (c) VENDOR DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE.

8. MISCELLANEOUS

8.1. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.

8.2 Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.

8.3 Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.

8.4 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety, without the other party’s consent, but with reasonable notice, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.

8.5 Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.

8.6 Notice. Customer may send notices to Vendor as follows (i) for questions regarding navigation, support or related advice, Customer may email their Customer Service Representative as identified in the correspondence received in connection with their registration (b) for outage, downtime, lock-out or other access issues, Customer may email support@backstagesocial.com.

8.7 Export Control Notice. The Service, any associated Confidential Information or documentation are being released or transferred to Customer in the United States and are therefore subject to the United States export control laws. Customer acknowledges its obligation to ensure that its exports from the United States are in compliance with United States export control laws. Customer shall also be responsible for complying with all applicable governmental regulations of any foreign countries with respect to the use of the Service outside of the United States. Customer agrees that it will not submit the data related to the Service to any government agency for licensing consideration or other regulatory approval without the prior written consent of Vendor.

8.8 Governing Law. This Agreement shall be governed by and construed under the law of the State of Tennessee without reference to its conflicts of law principles. Notwithstanding the foregoing, this choice of law shall not be construed as consent by Customer to exclusive jurisdiction and/or venue in any courts. In the event of any conflicts between foreign law, rules, and regulations, and United States of America law, rules, and regulations, United States of America law, rules and regulations shall prevail and govern. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. The Uniform Computer Information Transactions Act as or enacted, or as shall be amended from time to time, shall not apply. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of Davidson County, Tennessee. This Section 8.8 governs all claims arising out of or related to this Agreement, including without limitation tort claims.

8.9 Entire Agreement. This Agreement and each Schedule and Appendix hereto constitute the complete and exclusive statement of the agreement between Vendor and Customer, and all previous representations, discussions, and writing are merged in, and superseded by this Agreement. Only a writing signed by both parties may modify this Agreement. This Agreement and each Appendix hereto shall prevail over any additional, conflicting, or inconsistent terms and conditions which may appear on any purchase order or other document furnished by Customer to Vendor.