Customer Agreement

This Customer Agreement (the “Agreement”) is entered into by and between Hanabi AI, Inc. dba Fish Audio (“Fish Audio”) and the individual or entity that accepts this Agreement or purchases or uses the Services (“Customer”). This Agreement becomes effective on the earliest of the date that Customer (a) clicks to accept or otherwise electronically accepts this Agreement, (b) creates, activates, purchases, or renews a paid account or subscription for the Services, or (c) executes an Order Form referencing this Agreement (the “Effective Date”). If the individual accepting this Agreement does so on behalf of a company or other legal entity, that individual represents that they have authority to bind that entity, in which case “Customer” refers to that entity.

In consideration of the mutual promises contained herein, the parties hereby agree to the following:

1. Definitions

Capitalized terms shall have the meanings set forth in this section, or in the section where they are first used.

1.1 “Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer or any Authorized Users to access the Services.

1.2 “Aggregated Data” means data and information related to Customer Materials and/or Customer’s use of the Services that is used by Fish Audio in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.

1.3 “API” means the application programming interface with tools and Documentation that Customer can use within its owned or controlled software applications or systems (“Application”) to access and interface with the Platform.

1.4 “Authorized User” means any individual who is an employee or independent contractor of Customer, or such other individual as may be authorized by the Customer to access the Services pursuant to Customer’s rights under this Agreement.

1.5 “Customer Materials” means, other than Aggregated Data, (a) Inputs; (b) Outputs; and (c) text, audio, information, data, documents, and other content, in any form or medium, that is uploaded, submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the use of the Platform or Services.

1.6 “Documentation” means Fish Audio-provided user documentation, in all forms, relating to the Services in hard copy or electronic form (e.g. user manuals and online help files).

1.7 “Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.

1.8 “Order” or “Order Form” means any ordering document or process through which Customer orders Services, including (a) an Order Form signed by both parties; (b) an online checkout or purchase confirmation; (c) a website subscription or pricing plan selected by Customer; and (d) an account upgrade or renewal. The initial Order, if any, may be set forth on Exhibit A. Customer is not required to execute Exhibit A to order Services through an online or electronic process.

1.9 “Order Term” means the term length specified in the applicable Order Form.

1.10 “Platform” means Fish Audio’s AI-powered text-to-speech (TTS) and voice cloning platform that enables users to generate lifelike, emotionally expressive speech from text or short audio samples. “Platform” includes all new versions, updates, revisions, improvements and any associated user interfaces and related technology that Fish Audio makes available pursuant to this Agreement.

1.11 “Properties” means the API and the Platform.

1.12 “Services” means Fish Audio’s provision of: (1) the Platform; and (2) any other services set forth in the applicable Order Form.

1.13 “Zero Data Retention” or “ZDR” means the optional configuration of the Services described in Section 4.4 (Zero Data Retention) which, when enabled for Customer, applies to Customer Materials processed through the Services while such configuration is enabled.

2. Provision of Services

2.1 Order Forms. Each Order Form is governed by, and hereby incorporated into, this Agreement. If there is a conflict between this Agreement and an Order Form, this Agreement will control unless the Order Form expressly states that a specific provision of this Agreement will be superseded by a specific provision of the Order Form.

2.2 License to Platform and API. Subject to and conditioned on Customer’s payment of Fees and compliance with all the terms and conditions of this Agreement, Fish Audio grants to Customer a non-exclusive, non-transferable license during the term, solely for use by Authorized Users in accordance with the terms and conditions herein, (a) to access and use the features and functions of the Platform made available by Fish Audio to Customer as required for use of the Services and in accordance with the Documentation; and (b) to use and reproduce a reasonable number of copies of the Documentation solely to support Customer’s use of the Services.

2.3 Artificial Intelligence Tools. Subject to this Agreement, Fish Audio makes available to Customer certain artificial intelligence tools in connection with Customer’s and its Authorized Users’ access to and use of certain Services (collectively, the “Fish Audio AI Tools”). Except where expressly specified otherwise in this Agreement, the Fish Audio AI Tools constitute a “Service” for the purposes of the Agreement and the Agreement shall apply in full to Customer’s use of the Fish Audio AI Tools. The Fish Audio AI Tools leverage large language models and artificial intelligence algorithms to generate voices and voice lines (collectively, the “Output”) in response to the Customer Materials which may be submitted or made available through the Services (“Inputs”). Fish Audio is not responsible for any Output generated through access to or use of the Fish Audio AI Tools and Customer uses such Output at its own risk. As between the parties, each of the Inputs and Output are considered Customer Material for the purposes of the Agreement; provided, however, Fish Audio does not represent or warrant that Customer or any Authorized User is the legal owner of the Output, or that the Input or Output are protectable by any intellectual property rights, or that the Output does not incorporate, infringe or misappropriate the intellectual property or proprietary rights of any third party. CUSTOMER, AND NOT FISH AUDIO, SHALL BE SOLELY RESPONSIBLE FOR ITS AUTHORIZED USERS’ USE OF THE FISH AUDIO AI TOOLS, INCLUDING ANY USE OF THE RESULTS OF ANY SEARCH OR INQUIRY, AND DECISIONS MADE OR ACTIONS TAKEN BASED ON ANY SEARCH OR INQUIRY USING THE FISH AUDIO AI TOOLS. CUSTOMER ACKNOWLEDGES THAT ANY CONDUCT CUSTOMER OR ITS AUTHORIZED USERS ENGAGE IN AS A RESULT OF THE INFORMATION PROVIDED BY THE FISH AUDIO AI TOOLS OR ANY OTHER AI-ENABLED FEATURE MADE AVAILABLE THROUGH THE PLATFORM ARE AT CUSTOMER’S OWN RISK. CUSTOMER AGREES THAT FISH AUDIO WILL NOT BE HELD LIABLE TO CUSTOMER, ANY AUTHORIZED USER, OR ANY THIRD PARTY FOR THE FISH AUDIO AI TOOLS OR ANY OTHER AI-ENABLED FEATURE MADE AVAILABLE THROUGH FISH AUDIO OR THIRD-PARTY PROVIDERS PROVIDING INACCURATE INFORMATION TO CUSTOMER OR ANY AUTHORIZED USER.

3. Customer Restrictions and Responsibilities

3.1 Restrictions. Except as may be expressly permitted by applicable law, Customer agrees that it will not, and will not permit any Authorized User or other party to: (a) allow any third party to access the Properties except as expressly allowed in the Order Form; (b) modify, adapt, alter or translate the Properties; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the Properties for the benefit of any unauthorized third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Properties; (e) interfere in any manner with the operation of the Properties or the hardware and network used to operate the Properties; (f) modify, copy or make derivative works based on any part of the Properties; (g) access or use the Properties to build, improve, or enhance a similar or competitive product or service; (h) attempt to access the Properties through any unapproved interface; (i) create any script or other automated tool that attempts to create multiple API keys; (j) use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools, or the like) to “scrape” or download data from any web pages contained in the Services (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Services for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (k) use the Properties in a manner that, as determined by Fish Audio in its discretion, exceeds reasonable request volume, constitutes excessive or abusive usage, or otherwise fails to comply or inconsistent with any part of the documentation (including any applicable Call limitations); (l) imply inaccurate creation, affiliation, sponsorship or endorsement of Customer or the Application or (m) otherwise use the Properties in any manner inconsistent with applicable law. Customer bears responsibility to obtain any telecommunications or computer hardware or software required to access the Properties.

3.2 API Calls. Customer’s Application may make automated calls or other data requests to or through the Platform (“Calls”). Fish Audio may limit the number of Calls that Customer may send to the Platform, and may adjust any such limits (such as concurrency quotas) upon written notice from time to time, in its sole discretion, to maintain performance of the Platform and fair usage of the Platform across all customers. Fish Audio may use technical measures to prevent over-usage and stop usage of the API by an Application after any usage limitations are exceeded or suspend Customer’s access to the API with or without notice to Customer in the event Customer exceeds any such limitations. While Fish Audio may allow temporary burst capacity beyond the usage limitations to accommodate short-term fluctuations in Call traffic, Fish Audio does not guarantee that any Calls beyond the limit will be processed.

3.3 Authorized Users Access to Services. Customer may permit any Authorized Users to access and use the features and functions of the Services as contemplated by this Agreement, subject to each such Authorized User’s acceptance of the Platform Terms of Use. User IDs cannot be shared or used by more than one Authorized User at a time. Customer shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services, and notify Fish Audio promptly of any such unauthorized use known to Customer. Customer will be responsible for the acts or omissions of any Authorized Users in their access to and use of the Services and any breach by an Authorized User of the terms of this Agreement will constitute a breach by Customer of this Agreement.

3.4 Customer Responsibility for Data and Security. Customer and its Authorized Users shall have access to the Customer Material and shall be responsible for all changes to and/or deletions of Customer Material and the security of all passwords and other Access Protocols required in order to access the Services. Customer shall have the ability to export Customer Material out of the Services and is encouraged to make its own back-ups of the Customer Material. Customer shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Material. In the ordinary course of its business, Fish Audio performs back-ups of Customer Material; however, Fish Audio is not responsible for performing, and is not liable for any failure to perform, any back-up of any Customer Material.

3.5 Responsible Use of AI Tools. Customer shall comply with all obligations and commitments in the Agreement with respect to Customer Materials in connection with Customer’s use of the Fish Audio AI Tools. Customer is solely responsible for the Inputs, its Outputs and its use thereof. Without limiting the disclaimers in Section 6.3 below, Customer is responsible for reviewing any Output prior to its use and exercising its own business and legal judgement as to its suitability for use. Without limiting the foregoing and Customer’s representations and warranties under the Agreement, Customer shall not submit or use any Inputs or Output that: (a) infringe or misappropriates any third party’s intellectual property rights or other proprietary rights; (b) violate applicable laws, rules, and regulations; or (c) contain any viruses, worms or other malicious computer programming codes that may damage the Platform. Fish Audio reserves the right to suspend or terminate your access to the Fish Audio AI Tools for any failure by Customer or an Authorized User to comply with this Section. In addition to the foregoing, Customer’s obligations under the Agreement with respect to use of the Services, its representations and warranties and indemnification obligations, shall apply in full with respect to Customer’s use of the Fish Audio AI Tools. Customer acknowledges and agrees that, notwithstanding the automated suggestions provided by the Fish Audio AI Tools, it remains solely responsible for the content, legality, accuracy, and completeness of the Outputs, and any use thereof.

3.6 Suspension of Services. In addition to any other right or remedy available to it, Fish Audio may suspend Customer’s or any Authorized User’s access to all or any part of the Services, with or without notice, if Fish Audio reasonably determines that: (a) Customer or an Authorized User has breached, or is reasonably suspected of breaching, Section 3 (Customer Restrictions and Responsibilities) or Section 6.2 (Customer Warranty); (b) suspension is necessary to prevent or mitigate a security risk, unauthorized access, or harm to the Properties, Fish Audio, or any third party; (c) Customer’s use of the Services poses a risk of liability to Fish Audio or violates applicable law; or (d) suspension is required to comply with applicable law or a request of a governmental or regulatory authority. Fish Audio will use commercially reasonable efforts to limit any such suspension to the scope and duration reasonably necessary and to restore access promptly after the cause of suspension is resolved.

4. Ownership

4.1 Fish Audio Intellectual Property. As between Fish Audio and Customer, the Services, Platform, API and Documentation, and all worldwide Intellectual Property Rights in each of the foregoing, including, without limitation, any customizations created hereunder, are the exclusive property of Fish Audio and its suppliers. Further, Fish Audio owns and retains all right, title, and interest in and to its artificial intelligence algorithms and machine learning models, and all improvements, enhancements, and updates thereto, including such algorithms and models that are trained or fine-tuned on Aggregated Data (collectively, “Models”). Customer will have no right to the Models under this Agreement, including any rights to access or use the Models. All rights in and to the Services, Platform, API and Documentation not expressly granted to Customer in this Agreement are reserved by Fish Audio and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Platform, API, Documentation, Models and Services or any part thereof, including any right to obtain possession of any source code, data or other technical material related to the Platform or Models.

4.2 Customer Materials. Customer is solely responsible for any and all obligations with respect to the accuracy, quality, completeness, and legality of Customer Materials. Customer will obtain all third-party licenses, consents and permissions needed for Fish Audio to use the Customer Materials to provide the Services. Without limiting the foregoing, Customer will be solely responsible for obtaining from third parties all necessary rights for Fish Audio to use the Customer Material submitted by or on behalf of Customer for the purposes set forth in this Agreement. Subject to Section 4.4 Customer grants Fish Audio a non-exclusive, worldwide, royalty-free and fully paid license during the Order Term to use the Customer Material as necessary for purposes of providing and/or improving the Services, including, without limitation, for quality control and quality assurance purposes. The Customer Materials hosted by Fish Audio as part of the Services, and all worldwide Intellectual Property Rights in and to the foregoing, are the exclusive property of Customer. All rights in and to the Customer Materials not expressly granted to Fish Audio in this Agreement are reserved by Customer.

4.3 Aggregated Data. Notwithstanding anything to the contrary in this Agreement, Fish Audio may monitor Customer’s use of the Services and collect, derive, create, and/or compile Aggregated Data. As between Fish Audio and Customer, all right, title, and interest in and to Aggregated Data, and all Intellectual Property Rights therein, belong to and are retained solely by Fish Audio. Subject to Section 4.4, Customer agrees that Fish Audio may (i) collect, derive, create, or compile Aggregated Data based on Customer Materials, (ii) make Aggregated Data publicly available in compliance with applicable law, (iii) use Aggregated Data to the extent and in the manner permitted under applicable law, and (iv) otherwise use Aggregated Data for its lawful business purposes and as permitted under the Agreement, including to improve its Models; provided that such Aggregated Data does not identify Customer or Customer’s Confidential Information.

4.4 Zero Data Retention.

(a) Fish Audio makes available a Zero Data Retention configuration for certain Services, features, and models that Fish Audio designates as ZDR-eligible. Customer may enable, disable, or change its ZDR preference at any time through the applicable setting made available within the Services, and any change will apply prospectively from the time made.

(b) If and for so long as ZDR is enabled for Customer, then notwithstanding Sections 4.2 (Customer Materials) and 4.3 (Aggregated Data):

(i) Fish Audio will not retain Customer Materials, including Inputs and Outputs, beyond the period strictly necessary to process the applicable request and return the corresponding Output, after which Fish Audio will delete such Customer Materials from its systems in the ordinary course of operation; provided that Fish Audio may retain transient or ephemeral copies of Customer Materials, and non-content technical data such as in-memory caches and cryptographic hashes, for the limited period necessary to process the applicable request, and residual copies of Customer Materials contained in routine backups will be deleted or overwritten in the ordinary course of Fish Audio’s backup cycle;

(ii) Fish Audio will not use Customer Materials to train, fine-tune, develop, test, or otherwise improve any Model, artificial intelligence or machine-learning model, or the Services; and

(iii) Fish Audio will not derive, create, or compile Aggregated Data from Customer Materials.

(c) ZDR applies only to Customer Materials processed through the Services while ZDR is enabled for Customer. ZDR does not apply to:

(i) Aggregated Data or other data lawfully created or derived when ZDR was not enabled;

(ii) Feedback;

(iii) data retained or processed by Fish Audio to comply with applicable law;

(iv) usage, billing, account, configuration, operational, and transactional metadata that does not contain Customer Materials, including call volumes, character or byte counts used to calculate Fees, security logs, audit logs, and event logs; and

(v) data processed by any third-party tool, service, or integration that Customer elects to use with the Services, which will be governed by the applicable third party’s data-handling practices.

(d) If Customer enables or uses any feature, configuration, or integration that, by its nature, requires retention or further processing of Customer Materials, ZDR will not apply to Customer Materials processed through that feature, configuration, or integration. Any data retained by Fish Audio under this Section 4.4 that contains Customer Materials will be held in confidence in accordance with Section 8 and used solely for the purpose for which it was retained. Customer acknowledges that enabling ZDR may limit or disable certain Services features that depend on retention or further processing of Customer Materials.

(e) In the event of any conflict between this Section 4.4 and Sections 4.2 or 4.3, this Section 4.4 will control for so long as ZDR is enabled.

4.5 Generic Tools. Prior hereto and/or during the course of providing the Services, Fish Audio has and/or will develop certain coding, programming or designing techniques, architecture, trade secrets, methodology, APIs, functions, applications, knowledge, experience, skills, templates, other know-how and related Intellectual Property Rights, which Fish Audio may use on other projects or for other services to third parties as part of the tools of Fish Audio’s business and that such developments and Intellectual Property Rights shall constitute “Generic Tools,” so long as, and to the extent that, they do not include any: (i) Customer Materials; or (ii) Customer Confidential Information. Fish Audio retains all right, title and interest in and to Generic Tools and associated Intellectual Property Rights as may be made available to Customer under this Agreement.

4.6 Feedback. If Customer or any of its Authorized Users, employees or contractors sends or transmits any communications or materials to Fish Audio by mail, email, telephone, or otherwise, suggesting or recommending changes to Fish Audio’s intellectual property, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Fish Audio is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. Customer hereby assigns to Fish Audio on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Fish Audio is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other Intellectual Property Rights contained in the Feedback, for any purpose whatsoever, although Fish Audio is not required to use any Feedback.

5. Fees and Expenses; Payments

5.1 Fees and Expenses. Customer shall pay to Fish Audio, without offset or deduction: (a) the fees for any API credits as set forth on the Order Form; and (b) certain usage fees as set forth on the Order Form (the “Usage Fees”) (collectively, the “Fees”), in accordance with the payment terms set forth in Section 5.3 below. Fish Audio reserves the right to increase the Fees under each Order Form following the initial Order Term.

5.2 Taxes. The fees and other amounts payable by Customer to Fish Audio do not include any taxes of any jurisdiction that may be assessed or imposed upon the Services, or otherwise, including sales, use, excise, value added, personal property, export, import and withholding taxes, excluding only taxes based upon Fish Audio’s net income. Customer shall directly pay any such taxes assessed. Customer shall promptly reimburse Fish Audio for any taxes payable or collectable by Fish Audio (other than taxes based upon Fish Audio’s net income). If Customer has provided Fish Audio with proof of its tax exempt status, then, in the event that Customer’s tax exempt status should become altered, Customer shall be obligated to notify Fish Audio immediately of any such modification and Customer shall become liable for all taxes as set forth above. In the event Customer fails to notify Fish Audio of any such change, Customer shall be liable for payment of any tax related penalties or interest assessed against Fish Audio or Customer as a result of such Customer failure.

5.3 Payment Terms. Customer will make payments to Fish Audio in accordance with payment method set forth on the Order Form (“Payment Method”). Where the Payment Method is a credit card or enterprise payment account (e.g., Stripe), Customer hereby agrees to Fish Audio’s automatic charging of the applicable Fees to Customer’s Payment Method as described herein and in the Order and that no further consent is required for such charges. If any Customer payment is more than thirty (30) days past due, interest at the rate of one percent (1%) per month (or, if lower, the maximum rate permitted by applicable law) shall accrue. Unless otherwise specified in this Agreement, all fees and other amounts paid by Customer under this Agreement are non-refundable, including, without limitation, any fees paid for API credits in advance. All dollar amounts referred to in this Agreement are in United States Dollars.

5.4 Suspension. In the event that Customer’s account is more than thirty (30) days overdue on any payment for any reason, Fish Audio shall have the right, in addition to its remedies under this Agreement or pursuant to applicable law, to suspend Customer’s and/or its Authorized Users’ use of the Platform or Services, without further notice to Customer, until Customer has paid the full balance owed, plus any interest due.

5.5 Subscription Term; Renewal. Unless otherwise stated in an applicable Order, monthly subscriptions renew for successive monthly periods and annual subscriptions renew for successive annual periods, in each case unless Customer cancels renewal before the start of the next renewal period. Customer may cancel automatic renewal through its account or another cancellation method made available by Fish Audio. Cancellation takes effect at the end of the then-current subscription period and prevents the next renewal, but does not entitle Customer to a refund of Fees for the current subscription period. Unless Customer cancels as provided above, Fish Audio may automatically charge the applicable renewal Fees to Customer’s Payment Method for each renewal period. Fish Audio may change the Fees or pricing applicable to a subscription, with any such change to apply no earlier than the next renewal period following reasonable advance notice to Customer.

6. Warranties and Disclaimers

6.1 Mutual Warranties. Each party represents and warrants to the other that: (1) this Agreement has been duly executed and delivered and constitutes a binding agreement enforceable against the executing party in accordance with its terms; (2) no authorization or approval from any third party is required in connection with the execution, delivery, or performance of this Agreement by the executing party; and (3) the execution, delivery, and performance of this Agreement by the executing party do not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.

6.2 Customer Warranty. Customer represents and warrants to Fish Audio that: (1) Customer owns the Customer Materials, or has the necessary licenses, rights, consents, and permissions to authorize Fish Audio to use the Customer Materials in accordance with this Agreement; (2) Customer Materials and the use of Customer Material as contemplated by this Agreement does not and will not: (a) infringe, violate, or misappropriate any third-party right, including any Intellectual Property Right; (b) slander, defame, libel, or invade the right of privacy, publicity, or other property rights of any other person; or (c) violate, or cause Fish Audio to violate, any law or regulation; (d) be deceptive, obscene, pornographic or unlawful; (e) contain any viruses, worms or other malicious computer programming codes intended to damage Fish Audio’s system or data; (3) for any voice, speech, or other vocal or personal likeness of an identified or identifiable individual that is contained in, submitted as, cloned from, or generated using any Customer Materials or the Services, Customer has obtained and will maintain all rights, consents, and authorizations from the relevant individual(s) necessary for such submission, cloning, generation, and use as contemplated by this Agreement, including under all applicable rights of publicity, privacy, and data protection laws; and (4) Customer will use the Services and Platform in compliance with the Documentation, any instructions provided by Fish Audio, and applicable law. Fish Audio may monitor Customer’s use of the Services and may prohibit any use of the Services or Platform it believes may be in violation of the foregoing warranties or applicable law.

6.3 Disclaimers.

(a) General. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN THIS SECTION, FISH AUDIO MAKES NO OTHER EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE PLATFORM, API, DOCUMENTATION, AGGREGATED DATA, INPUTS, OUTPUTS, SERVICES OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED AND STATUTORY WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY, SATISFACTORY QUALITY, ACCURACY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. THE PLATFORM, API, DOCUMENTATION, AND SERVICES ARE PROVIDED “AS IS.” FISH AUDIO DOES NOT WARRANT THAT THE PLATFORM, API, DOCUMENTATION OR SERVICES WILL SATISFY CUSTOMER’S REQUIREMENTS, ARE WITHOUT DEFECT OR ERROR, OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF WARRANTIES. THIS SECTION WILL APPLY TO CUSTOMER SOLELY TO THE EXTENT PERMITTED BY APPLICABLE LAW.

(b) Fish Audio AI Tools. THE FISH AUDIO AI TOOLS ARE INTENDED AS OUTPUT GENERATION TOOLS ONLY AND FISH AUDIO MAKES NO WARRANTY OR GUARANTY THAT THE OUTPUT WILL PROVIDE ACCURATE, TAILORED, OR COMPLETE RESULTS OR BE FIT FOR THE PARTICULAR PURPOSE OR USE CASE. FISH AUDIO DOES NOT REPRESENT OR WARRANT THAT THE CUSTOMER IS THE LEGAL OWNER OF THE OUTPUT, OR THAT THE INPUT OR OUTPUT ARE PROTECTABLE BY ANY INTELLECTUAL PROPERTY RIGHTS, OR THAT THE OUTPUT DOES NOT INCORPORATE, INFRINGE OR MISAPPROPRIATE THE INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS OF ANY THIRD PARTY. CUSTOMER SHOULD EVALUATE THE FITNESS OF ANY OUTPUT AS APPROPRIATE FOR CUSTOMER’S SPECIFIC USE CASE.

7. Limitation of Liability

7.1 Exclusion of Damages. EXCEPT WITH RESPECT TO A PARTY’S FRAUD, INFRINGEMENT OR MISAPPROPRIATION BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR ANY LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED UNDER APPLICABLE LAW (COLLECTIVELY, “EXCLUDED LIABILITY”), NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE ARISING OUT OF THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO DAMAGES OR COSTS DUE TO LOSS OF PROFITS, BUSINESS INTERRUPTION ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES. FOR CLARITY, AMOUNTS A PARTY IS REQUIRED TO PAY TO A THIRD PARTY UNDER ITS INDEMNIFICATION OBLIGATIONS IN SECTION 9, INCLUDING DAMAGES, COURT-AWARDED OR SETTLED AMOUNTS, AND REASONABLE DEFENSE COSTS, ARE DIRECT DAMAGES THAT ARE NOT EXCLUDED BY THIS SECTION 7.1 AND ARE SUBJECT TO THE CAP IN SECTION 7.2. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES. THIS SECTION WILL APPLY SOLELY TO THE EXTENT PERMITTED BY APPLICABLE LAW.

7.2 Amount of Damages. EXCEPT WITH RESPECT TO EXCLUDED LIABILITY AND CUSTOMER’S OBLIGATION TO PAY FEES AND OTHER AMOUNTS PROPERLY DUE UNDER THIS AGREEMENT, THE MAXIMUM LIABILITY OF EITHER PARTY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER TO FISH AUDIO DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. THE FOREGOING CAP IS AN AGGREGATE CAP THAT APPLIES ACROSS ALL CLAIMS, EVENTS, AND THEORIES OF LIABILITY, AND IS NOT A SEPARATE CAP PER CLAIM.

7.3 Basis of the Bargain. THE PARTIES AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION SHALL SURVIVE AND CONTINUE IN FULL FORCE AND EFFECT DESPITE ANY FAILURE OF CONSIDERATION OR OF AN EXCLUSIVE REMEDY. THE PARTIES ACKNOWLEDGE THAT THE PRICES HAVE BEEN SET AND THE AGREEMENT ENTERED INTO IN RELIANCE UPON THESE LIMITATIONS OF LIABILITY AND THAT ALL SUCH LIMITATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.

8. Confidentiality

8.1 Confidential Information. During the term of this Agreement, each party (the “Disclosing Party”) may provide the other party (the “Receiving Party”) with certain information regarding the Disclosing Party’s business, technology, products, or services or other confidential or proprietary information (collectively, “Confidential Information”). The Disclosing Party will mark all Confidential Information in tangible form as “confidential” or “proprietary” or with a similar legend, and identify all Confidential Information disclosed orally as confidential at the time of disclosure and provide a written summary of such Confidential Information within thirty (30) days after such oral disclosure. Regardless of whether so marked or identified, the Platform, Documentation, and all enhancements and improvements thereto will be considered Confidential Information of Fish Audio.

8.2 Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to Authorized Users (with respect to Customer) or to those employees or subcontractors who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to Fish Audio). In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party shall provide to the Disclosing Party a written affidavit certifying compliance with this sentence.

8.3 Exceptions. The confidentiality obligations set forth in this section will not apply to any information that (a) becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure; or (d) the Receiving Party can prove, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.

9. Indemnification

9.1 By Fish Audio. Fish Audio will indemnify and hold harmless, at its own expense, Customer from and against any and all threatened third-party claim, proceeding, or suit (each, a “Claim”), and pay all liabilities, losses, damages, costs, and other expenses (including attorneys’ and expert witnesses’ costs and fees), arising out of or relating to an allegation that the Platform, when used by Customer as authorized herein, infringes or misappropriates a third party’s patents, copyrights or trade secret rights under applicable laws of any jurisdiction within the United States of America. If any portion of the Platform becomes, or in Fish Audio’s opinion is likely to become, the subject of a claim of infringement, Fish Audio may, at Fish Audio’s option: (a) procure for Customer the right to continue using the Platform; (b) replace the Platform (or infringing component) with non-infringing software or services which do not materially impair the functionality of the Platform; (c) modify the Platform so that it becomes non-infringing; or (d) terminate this Agreement and refund any unused prepaid fees for the remainder of the term then in effect, and upon such termination, Customer will immediately cease all use of the Platform and other Services. Notwithstanding the foregoing, Fish Audio will have no obligation under this section or otherwise with respect to any infringement claim based upon (i) Inputs or Outputs, (ii) any use of the Platform not in accordance with this Agreement or as specified in the Documentation; (iii) any use of the Platform in combination with other products, equipment, software or data not supplied by Fish Audio; or (iv) any modification of the Platform by any person other than Fish Audio or its authorized agents. This section states the sole and exclusive remedy of Customer and the entire liability of Fish Audio, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.

9.2 By Customer. Customer will indemnify and hold harmless, at its own expense, Fish Audio and its affiliates, employees, directors, and agents from and against any and all Claims, and pay all liabilities, losses, damages costs and other expenses (including attorneys’ and expert witnesses’ costs and fees) arising out of or relating to (a) Customer’s breach or alleged breach of Sections 3.1, 3.5, 4.2, and/or 6.2; (b) Customer’s use of the Inputs and/or Outputs; and (c) Customer Material.

9.3 Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party shall promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party shall have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party shall cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit. The indemnified party shall not agree to settle any such claim without the indemnifying party’s express prior written consent. The indemnified party may participate in the defense of the Claim at its own expense and with counsel of its own choosing, but the indemnifying party will have sole control over the defense of the Claim.

10. Term and Termination

10.1 Term. The term of this Agreement will commence on the Effective Date and will continue in full force and effect, unless earlier terminated in accordance with the Agreement. Unless otherwise stated in the applicable Order Form, the Order Term will continue in full force and effect for one (1) year, unless earlier terminated in accordance with the Agreement.

10.2 Termination if No Outstanding Orders. If there are no outstanding Order Forms, either party may terminate this Agreement for any reason upon thirty (30) days’ prior written notice to the other. Neither party may terminate an Order once it has been executed, other than by mutual consent or termination of this Agreement for material breach as set forth below.

10.3 Termination for Breach. Either party may terminate this Agreement or any Order immediately upon notice to the other party if the other party materially breaches this Agreement or the applicable Order, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach.

10.4 Effect of Termination. Expiration or termination of this Agreement will automatically terminate all active Orders, but termination of a single Order will not result in termination of this Agreement or any other Orders. Upon the expiration or termination of this Agreement or an Order all rights and licenses granted by Fish Audio to Customer under this Agreement or the applicable Order will terminate. Either party’s termination of this Agreement is without prejudice to any other remedies it may have at law or in equity, and does not relieve either party of breaches occurring prior to the effective date of termination. Neither party will be liable to the other for damages arising solely as a result of terminating this Agreement in accordance with its terms.

10.5 Post-Termination Obligations. Unless Customer terminates this Agreement for material breach, if this Agreement expires or is terminated: (1) Fish Audio will not refund Customer any Fees paid in advance of such expiration or termination, including pre-paid Fees; and (2) within ten days after such expiration or termination, Customer shall pay Fish Audio all Fees accrued through the effective date of termination, including any Monthly Minimum Commitment for the final billing month. Sections 1, 3.1, 4, 5, 6.3, 7, 8, 9, 10.4, 10.5 and 11 will survive expiration or termination of this Agreement for any reason.

11. Miscellaneous

11.1 Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Delaware, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction; provided, however, that if Customer is a United States public educational institution domiciled in a state within the United States that expressly requires a different choice of law other than Delaware law, then the laws of the state in which Customer is located will apply. The parties hereby consent to the personal and exclusive jurisdiction and venue of the Federal and state courts located in New Castle County, Delaware.

11.2 Export. Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Fish Audio, or any products utilizing such data, in violation of the United States export laws or regulations.

11.3 Severability. If any provision of this Agreement or a portion of a provision is held to be invalid, illegal, or unenforceable, the rest of this Agreement will remain enforceable.

11.4 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

11.5 Remedies. Except as provided in Section 9, the parties’ rights and remedies under this Agreement are cumulative. Customer acknowledges that the Services, Platform, and Documentation contain valuable trade secrets and proprietary information of Fish Audio, that any actual or threatened breach of the Sections 3.1, 4 or 8 or any other breach by Customer of its obligations with respect to Intellectual Property Rights of Fish Audio will constitute immediate, irreparable harm to Fish Audio for which monetary damages would be an inadequate remedy. In such case, Fish Audio will be entitled to seek immediate injunctive relief or other equitable relief without the requirement of posting bond, including an order that any Platform, Documentation, or any portions thereof, that Customer attempts to import into any country or territory be seized, impounded and destroyed by customs officials. If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.

11.6 No Assignment. Neither party shall assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement to an affiliate or in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. This Agreement shall inure to the benefit of each party’s permitted successors and assigns.

11.7 Publicity. Fish Audio may publicly list Customer as a customer of Fish Audio and, subject to Customer’s brand guidelines, use Customer’s trademark, trade name, and logo solely for marketing or promotional purposes.

11.8 Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, pandemic, epidemic, quarantine, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.

11.9 Relationship of the Parties. Customer’s relationship to Fish Audio is that of an independent contractor, and neither party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Fish Audio.

11.10 Notices. All notices required or permitted under this agreement must be delivered in writing, if to Fish Audio, by emailing business@fish.audio and if to Customer, by emailing the email address associated with Customer’s account or specified in the applicable Order Form, provided, however, that with respect to any notices relating to breaches of this agreement or termination, a copy of such notice will also be sent in writing to the other party at the address specified in the applicable Order Form or associated with Customer’s account by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Each party may change its email address and/or address for receipt of notice by giving notice of such change to the other party.

11.11 Precedence. To the extent that a conflict arises between the terms and conditions of an Order Form and the terms of this Agreement, the terms and conditions of this Agreement will govern, except to the extent that the Order Form, expressly states that it supersedes specific language in the Agreement.

11.12 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument. A signed copy of this Agreement delivered by email, or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

11.13 Entire Agreement. This Agreement (including any Order Forms) is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of the Agreement. Except as set forth in the Section titled “Updates to these Terms,” no modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Customer and Fish Audio. Any amendment to a signed Order Form, or to the terms of this Agreement as applied to a signed Order Form, must be in a writing signed by both parties unless that Order Form expressly provides otherwise.

11.14 Updates to these Terms. Fish Audio may update this Agreement from time to time by posting the updated terms and providing reasonable notice of material changes (for example, by email to the address associated with Customer’s account or through the Services). Materially adverse changes will generally take effect upon the next renewal of Customer’s subscription following such notice, except that changes reasonably necessary to comply with applicable law or to address security, fraud, or abuse may take effect on the effective date stated in the notice. This Section does not affect the requirement that any negotiated amendment to a signed Order Form be made in a writing signed by both parties.