Spafax Standard Terms and Conditions

Last Updated: April 2025

Unless the Distributor to whom this Purchase Order is directed has entered into a separate written license agreement (“License Agreement”) with a Spafax Group entity (in which event such License Agreement’s terms and conditions shall govern this Purchase Order) this Purchase Order shall be governed by the attached Standard Terms and Conditions, which together with the terms set forth above and an Invoice as defined below, are understood to be a confirmation of the agreement reached between the parties hereto. Each a “Party” and together, the “Parties”.

This is a legal agreement (the “Agreement”) between Distributor and Spafax. This Agreement applies to Purchase Orders and Invoices issued for the Title(s). By accepting the Purchase Order, Distributor is confirming that it has the capacity to form a contract under its local laws.

1. In this Agreement, the following definitions apply:

1.1 “Airline” means the commercial airline as outlined on the applicable Purchase Order.

1.2 “Airline Crisis” has the meaning outlined in Section 14.6.

1.3  “Airline Crisis Notification” has the meaning outlined in Section 14.6.

1.4  “Artwork” means a digitized front cover artwork and any other graphic materials, which are owned or controlled by Distributor and provided to Spafax as part of the Title for use by the Airline in connection with the Licensed Service.

1.5  “Confidential Information” has the meaning outlined in Section 12.

1.6 “Content File” means an ad-free digital file (or set of files) consisting of one or more Titles, together with corresponding Artwork and Metadata, which is delivered to Spafax for use by the Airline in connection with the Licensed Service.

1.7  “Cycle Period” has the meaning outlined in Section 2.2.

1.8  “Deliverables” has the meaning outlined in Section 4.1.

1.9  “Discloser” has the meaning outlined in Section 12.

1.10 “Distributor” means the owner or entity who grants Spafax the right to use and enable the Airline to use the Title on the Licensed Service and as outlined hereunder.

1.11 “Distributor Indemnifiable Loss(es)” has the meaning outlined in Section 9.1.

1.12 “Early Release” has the meaning outlined in Section 2.2.

1.13 “End Date” means the date, as indicated on the applicable Purchase Order, on which the Term and Spafax’s right to use and enable the Airline to use the Title expires.

1.14 “Force Majeure” has the meaning outlined in Section 14.5.

1.15 “Invoice” means the Spafax approved invoice provided by Distributor to Spafax setting out the terms agreed with Spafax. The Invoice shall be imported into this Agreement and all references to the Agreement shall include the Invoice.

1.16 “Late End Date” has the meaning outlined in Section 2.2.

1.17 “Licensed Service” means services that utilize, among other things, the Title, Artwork and other ancillary materials provided to Spafax by Distributor, such services  includes but is not limited to: (a) background/foreground services, which, if applicable, enable the performance of the Title(s) onboard the Airline’s owned and/or operated aircrafts during the boarding and disembarkation of passengers; (b) analog services, if applicable, which are non-interactive analog audio radio and/or  analog video services consisting of preprogrammed linear audio channels available onboard the Airline’s owned and/or operated aircrafts; (c) radio services, if applicable, which are non-interactive digital audio radio services consisting of pre-determined or algorithmic programming on linear audio/video channels; (d) on-demand services, if applicable, which are interactive digital audio and audio-visual services consisting of programming made available to passengers onboard the Airline’s owned and/or operated aircrafts, either for playback an unlimited number of times or an “on demand” basis, whether through seatback units, tablets, laptop computers or otherwise; and (e) digital streaming services, if applicable, which are interactive audio and/or audiovisual digital services consisting of predetermined non-downloadable programming made available to select passengers through an online portal.

1.18 “License Fee” means the corresponding price (if any) for the grant of rights and license to Spafax of such Title(s) as indicated on the applicable Purchase Order.

1.19 “Licensed Period” means the period commencing on the Start Date through the End Date whereby the applicable Airline can make the Title(s) available on the Licensed Service.

1.20 “Material Requirements” means those material specifications for each Title as requested by Spafax and as outlined in the applicable Purchase Order.

1.21 “Metadata” means metadata associated with a particular Title delivered to Spafax by Distributor as part of a Content File.

1.22 “Program(s)” means any motion picture, TV program or other audio-visual owned by the Distributor, and licensed and provided to Spafax.

1.22 “Purchase Order” means the accompanying document detailing the specific Title being licensed by Spafax for the applicable Airline’s use, to which these Standard Terms and Conditions apply.

1.23 “Recipient” has the meaning outlined in Section 12.

1.24 “Spafax Indemnifiable Loss(es)” has the meaning outlined in Section 9.3.

1.25 “Spafax Parties” has the meaning outlined in Section 9.1.

1.26 “Start Date” means the effective date as indicated on the applicable Purchase Order allowing Spafax to exercise its rights to use the Title as outlined herein.

1.27 “Take-Down Notice” has the meaning outlined in Section 7.1.

1.28 “Taxes” has the meaning outlined in Section 6.

1.29 “Term” has the meaning outlined in Section 2.1.

1.30 “Termination Notice” has the meaning outlined in Section 11.2.

1.32 “Territory” means worldwide.

1.31 “Title(s)” means any (i) Program(s), (ii) audio product, such as podcast, song, or audiobook, and (iii) any other product wholly owned by the Distributor and provided and licensed to Spafax under the terms of this Agreement. Any reference to the Title shall be to each individual item within the Title and also to the Title as a whole.

1.32 “Wind-Down Period” has the meaning outlined in Section 11.3.

1.33 “Withdrawal Right” has the meaning outlined in Section 7.1.

2.1     The term of this Agreement (the “Term”) is effective as of the Start Date and continues in full force and effect through the last End Date as outlined in the applicable Purchase Order or earlier termination as set forth in Section 11.1 below.

2.2     Distributor acknowledges and agrees that the Title will be utilized on aircraft that are in use worldwide and varying Airline’s loading and unloading cycles (“Cycle Period”) may affect the Start Date and End Date of a Title. If an Airline’s Cycle Period begins prior to the Start Date, such Airline may use the Title for a limited period prior to the Start Date (“Early Release”). If an Airline’s Cycle Period ends after the End Date, such Airline may use the Title for a limited period after the End Date (“Late End Date”). Distributor shall notify Spafax in writing, of any restrictions that would affect the Early Release and/or the Late End Date of a Title, and Parties agree to work in good faith to prevent the Early Release and/or Late End Date of such Title.

3. Grant of Rights and Licenses. Distributor hereby grants to Spafax and its affiliates, licensees and subcontractors (as applicable to exploit the rights granted herein) the non-exclusive, sublicensable (solely as permitted herein) right and license (but not the obligation), in connection with the Licensed Service, to:

3.1      Copy and/or reproduce the number of copies of each Title delivered to Spafax necessary in Spafax’s reasonable judgement to implement the supported Licensed Service, and to maintain such copies and/or reproductions on Spafax’s servers solely as part of and in connection with the supported Licensed Service. This right may be exercised by subcontractors on behalf of Spafax for use on the Licensed Service.

3.2       Encode programming (including the Title) and to implement the loading of encoded programming (including the Title) on to aircraft servers on covered Airlines.

3.3      Enable the Airline to perform, record, broadcast, synchronize, telecast and otherwise use each Title in its entirety, in the Territory as part of the Licensed Service.

3.4      Enable the Airline to exhibit and display Artwork, as part of and in connection with the Licensed Service.

3.5      Enable the Airline to use the name of each Title and the Artwork to identify and display the applicable Title to passengers for such passenger’s selection purposes in connection with the Licensed Service.

3.6      Ingest, encode, transcode, format, test, host, store, reproduce, copy, display, transmit, communicate, exhibit, perform, distribute, and/or otherwise make available the Titles through the Licensed Service on the Airline’s owned and/or operated aircrafts in accordance with the terms and conditions of this Agreement.

3.7      Use, reproduce, copy, display, distribute, format, host, store, transmit and otherwise exploit the Metadata in connection with the Licensed Service.

4.1     Distributor shall deliver to Spafax the Content File, including the applicable synopses (long and short versions) (“Deliverables”) in accordance with the Material Specifications and on such date as advised by Spafax in writing (with email being deemed sufficient for this purpose).

4.2     In the event the Distributor does not provide Spafax with a synopsis, or the provided synopsis does not meet the Airline’s technical specifications (e.g. exceeds the character limits), Distributor acknowledges and agrees that Spafax may, in its sole discretion, modify the provided synopsis to meet the Airline’s technical specifications and/or create a new synopsis.

5. Payment Terms. Subject to the applicable Purchase Order, the License Fee (if any) shall be payable by Spafax sixty (60) days after the Start Date of each applicable Title; provided, however, that Spafax has received such sums from the applicable Airline.
6. Taxes. Unless otherwise stated herein, all License Fees (if any) payable hereunder are net of any and all withholding taxes, fees, levies, duties, tariffs, surcharges and other charges or assessments imposed or levied by any government authority (“Taxes”). If Taxes are imposed on a payment to Distributor under this Agreement, Spafax shall deduct from such payment the appropriate amount of such taxes as imposed, and provide to Distributor all withholding tax receipts or other certificates required by such government authority.
7. Withdrawal Right.

7.1     During the Term, Distributor reserves the right (“Withdrawal Right”) to provide Spafax with a written notice requesting the removal of a Title (“Take-Down Notice”), provided that such Take-Down Notice shall not be used to remove or take down a Title in bad faith, or to frustrate the intent of this Agreement and/or the rights granted hereunder. Following Spafax’s receipt of a Take-Down Notice, Spafax shall ensure the applicable Airline ceases to make such Title available on the Licensed Service on a prospective basis once reasonably practical for Spafax, but in no event later than sixty (60) days after receipt of such Take-Down Notice. Distributor hereby acknowledges and agrees that the Title(s) will be utilized on aircrafts that are in use worldwide and that flight schedules and related logistical issues will impact the speed with which Spafax can cease use of such Title following receipt of such Take-Down Notice. Accordingly, any delay in implementing such Take-Down Notice for the aforementioned reasons shall not constitute a breach of this Agreement.

7.2     In the event Distributor exercises its Withdrawal Right with respect to a given Title in accordance with Section 7.1 above: (i) the Parties shall work in good faith to select a replacement title from Distributor’s repertoire that is suitable for the applicable Airline; and/or (ii) Distributor shall be responsible for any out-of-pocket costs incurred in the removal such Title.

8. Representations and Warranties.

8.1     Distributor represents and warrants to Spafax that (i) it has the full right, power and authority to enter into this Agreement; (ii) it owns or exclusively controls the complete exhibition and other rights of each Title necessary for the purpose contemplated by this Agreement; (iii) it has the right, without limitation or restriction whatsoever, to grant the license and rights granted in this Agreement; (iv) this Agreement constitutes a valid and enforceable obligations of it; (v) the exploitation of the rights by Spafax as contemplated hereunder will not violate or infringe any rights whatsoever of any person or entity including, without limitation, infringement of intellectual property rights; (vi) the Title(s) (including any material contained therein and any advertising and promotional material provided by the Distributor) are not obscene, libelous; and (vii) any third party materials (including music) are owned or licensed by the Distributor and neither Spafax nor the Airline shall be required to pay any fees in order to exploit the rights granted herein.

8.2     Distributor represents and warrants that it has secured all necessary music synchronization and master recording rights for all musical works included in each Title.

8.3      With respect to non-dramatic public performance rights to musical works contained in each Title, the Distributor represents and warrants that such rights are either (i) administered and/or controlled by such local performance rights society or applicable collection agency in the applicable Airline’s ‘flag country’ (as the term is customarily used in the aviation industry), in which case Spafax shall ensure (through written agreement) that the Airline obtains the necessary public performance licenses from the applicable local performance rights societies or collection agency; (ii) controlled by the Distributor (or Distributor’s music publishing designee(s)) and are granted herein; or (iii) in the public domain.

8.4     Spafax covenants and warrants that it has full right, power and authority to enter into and perform under this Agreement.

9.1      Distributor will at all times indemnify, defend and hold harmless Spafax, the Airline(s), and their respective parent companies, subsidiaries, affiliates, licensees and sponsors, and their respective officers, employees, partners, agents and contractors (together “Spafax Parties”), from and against any and all claims, damages, liabilities, costs and expenses (including where applicable, any damages or compensation paid on legal advice to compromise or settle any claim and any reasonable legal and other professional costs and expenses) (collectively, “Distributor Indemnifiable Loss(es)”) incurred in connection with or arising from (i) Distributor’s breach or alleged breach of any provision of this Agreement; (ii) claim that the Title, Artwork, Metadata or other materials furnished to Spafax by or on behalf of the Distributor, and/or the authorized use in connection with the Licensed Service violates any law or regulation or infringes upon or violates any rights of an person or entity, including without limitation, any copyrights, trademarks or right of privacy or publicity.

9.2      In the event of any Distributor Indemnifiable Loss: (a) the applicable Spafax Parties shall notify Distributor of the Distributor Indemnifiable Loss immediately following the date that such Spafax Parties becomes aware of it (provided that any failure to immediately notify Distributor shall only affect any Spafax Parties’ right to indemnification hereunder to the extent such delay prejudices the defense of such claim); (b) Distributor shall defend against such Distributor Indemnifiable Loss (at Distributor’s own expense) through legal counsel selected by Distributor; and (c) each Party shall reasonably cooperate with the other in the defense of the Distributor Indemnifiable Loss concerned. Distributor shall be solely responsible for the amount of any settlement or judgment for such Distributor Indemnifiable Loss and all legal expenses and counsel fees incurred by Distributor in connection therewith; provided, however, that any settlement acknowledging any wrongdoing on behalf of any of the Spafax Parties or creating any additional obligations or payments or potential liabilities for any of the Spafax Parties shall be subject to the written approval of such Spafax Parties, such approval not to be unreasonably withheld, conditioned or delayed. The applicable Spafax Parties shall have the right at all times to actively participate in the defense thereof, and to employ legal counsel selected by such Spafax Parties at its own expense, it being understood that Distributor shall have the right at all times, in Distributor’s sole discretion, to maintain control of the conduct of the defense.

9.3   Subject to Distributor’s indemnification obligations set forth below, Spafax will indemnify, Distributor from and against any direct third-party claims, damages, liabilities, costs and expenses (including where applicable, any damages or compensation paid on legal advice to compromise or settle any claim and any reasonable outside legal and other professional costs and expenses) (“Spafax Indemnifiable Loss(es)”) suffered or incurred by Distributor and arising out of or in connection with any claim that Spafax’s use  of and/or modification of the Title not contemplated by this Agreement infringes the intellectual property rights (excluding any patents, brand names, logos or trademarks (and any other items that may be subject to registrable intellectual property rights) of any third-party, provided always that Spafax shall have no liability in connection with any such Spafax Indemnifiable Loss to the extent that it arises, or is increased, as a result of:

1. Distributor’s own written directions provided to Spafax in the course of Spafax’s and/or the Airline’s use of the Title pursuant to this Agreement;
2. Spafax and/or the Airline’s failure to adhere to the terms of any applicable license of Distributor in respect of third-party materials or services.

9.4      In the event of a Spafax Indemnifiable Loss (a) Distributor shall immediately notify Spafax in writing, provided that such failure to immediately notify Spafax shall only affect the Distributor’s right to indemnification hereunder to the extent such delay prejudices the defense of such Spafax Indemnifiable Loss; (b) Spafax shall defend such Spafax Indemnifiable Loss (at Spafax’s own expense) through legal counsel selected by Spafax; and (c) each Party shall reasonably cooperate with the other in the defense of the Spafax Indemnifiable Loss concerned. Spafax shall be solely responsible for the amount of any settlement or judgement for such Spafax Indemnifiable Loss and all legal expenses and counsel fees incurred by Spafax in connection therewith; provided, however, that any settlement acknowledging wrongdoing on behalf of Distributor or creating any additional obligation or payments or potential liabilities for the Distributor shall be subject to the written approval of the Distributor, such approval not to be unreasonably withheld, conditioned, or delayed. Distributor shall have right at all times to actively participate in the defense thereof, and to employ legal counsel selected by the Distributor at its own expense, it being understood that Spafax shall have the right at all times, in Spafax’s sole discretion, to maintain control of the conduct of the defense.

10. Limitation of Liability.
    • Neither Party will be liable to the other Party in respect of any of the following losses or damages (whether such losses or damages are direct, indirect, consequential, punitive or otherwise) arising out of or related to this Agreement: (i) loss of actual or anticipated profits; (ii) loss of goodwill; (iii) loss of revenue, loss of use of money or loss of anticipated savings; (iv) business interruption; (v) loss of business information, and the like, even if such Party has been advised of the possibility of such damages.
    • Spafax’s total aggregate liability for all claims arising in connection with this Agreement shall not exceed (i) $100, 000 US Dollars for all Purchase Orders if the rights were granted on a gratis basis, or (ii) the License Fees paid to the Distributor under the relevant Purchase Order if the rights were not granted on a gratis basis.
    • Notwithstanding the foregoing, each Party’s liability to the other Party for death, personal injury, fraudulent misrepresentation or any liability that cannot be excluded by law shall not be limited. Each Party makes no warranty or representation, express or implied, to the other Party, except as expressly set forth in this Agreement.

10.4     The Parties shall each use commercially reasonable efforts to mitigate any losses or other liabilities they may suffer or incur arising under or in connection with this Agreement.

11.1    Termination for Breach. Either Party shall have the right, in its sole discretion to terminate this Agreement in the event the other Party breaches this Agreement and fails to remedy such breach within thirty (30) days following receipt of a written notice from the non-defaulting Party. The expiration or termination of this Agreement shall not shorten the License Period of any Title licensed under this Agreement.

11.2     Either Party may terminate this Agreement by giving ninety (90) days written notice to the other Party (“Termination Notice”).

11.3     Notwithstanding the early termination of this Agreement, in recognition of Spafax’s obligations to the Airline undertaken during the Term, in accordance with and subject to the terms and conditions of this Agreement, those terms of this Agreement necessary for Spafax’s completion of those obligations shall remain in effect, and the Parties will continue to perform thereto, for a period of sixty (60) days  after termination (“Wind-Down Period”). For clarification purposes, during the Wind-Down Period, Spafax shall not provide the Airline with any new or additional Titles from the Distributor.

12. Confidentiality. Each Party (the “Recipient”) shall take reasonable steps to protect from improper disclosure, information and materials provided by the other Party or its representatives (the “Discloser”) that, due to the nature of such materials or the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary or confidential (hereinafter “Confidential Information”). The Recipient shall only use and disclose such Confidential Information to fulfill its obligations under this Agreement. “Confidential Information” defined and used herein shall include without limitation, business plans or strategies, business policies or practices or procedures, research data, sales, services, pricing, financial information, inventions, processes, unreleased software or programming, designs, drawings, technology, tools, engineering, marketing, trade secrets, patents, copyrights, supplier or vendor or client or customer information. Confidential Information shall not, however, include information which: (a) is known to the Recipient prior to disclosure by the Discloser, as demonstrated by the Recipient’s written records; (b) prior to or after the time of disclosure, becomes part of the public domain or publicly known, through no wrongful act or omission of the Recipient; (c) has been properly and lawfully disclosed to the Recipient by a third party, without any restriction on disclosure and without the breach of any confidentiality or legal obligation(s) by such third party; or (d) has been independently developed by the Recipient without the use of or reference to any Confidential Information belonging to the Discloser, as demonstrated by the Recipients written records. Recipient shall inform Discloser of all inquiries into or requests for Discloser’s Confidential Information by third parties and shall disclose Confidential Information to such third parties only when legally compelled to do so and after written notice to Discloser, or when so permitted or instructed by Discloser. Notwithstanding anything to the contrary, the Recipient may retain in its possession copies of the Confidential Information in accordance with policies and procedures of the Recipient in order to comply with law, regulation or archival purposes; provided, however, that the provisions of this Agreement relating to the protection and security of such Confidential Information shall remain in full force and effect as set forth in this Agreement.
13. Press Release. Neither Party shall issue any press releases or make any other public announcements or statements relating to this Agreement or referencing the other Party without the other Party’s prior written approval in each instance.
14. Miscellaneous Terms.

14.1     insurance. Distributor has and will maintain in effect at all times adequate insurance with a reputable insurer to cover all liabilities arising under or in connection with this Purchase Order and will provide a copy of the insurance certificate to Spafax upon written request.

14.2                Entire Agreement. This Agreement shall constitute the entire agreement between the Parties with respect to the subject matter hereof and shall supersede all previous negotiations, commitments and agreements, both written and oral, with respect to such subject matter (other than to the extent expressly provided herein). No change or termination of this Agreement shall be binding upon a Party unless it is made by an instrument signed by an authorized officer of such Party. A waiver by either Party of any provision of this Agreement in any instance shall not be deemed a waiver of such provision, or any other provision hereof, as to any future instance or occurrence. The headings of the sections in this Agreement are included for convenience only and shall not affect the interpretation of any provision.

14.3     Governing Law. The Parties agree that the validity, interpretation and legal effect of this Agreement shall be governed by the applicable laws as set forth below:

1. in force in the State of New York, if the Purchase Order is between Spafax Networks, LLC.;
2. in force under English law, with the English courts having exclusive jurisdiction to deal with any disputes, if the Purchase Order is between Spafax Airline Network, Limited, or Spafax Medios Y Publicidad SPA; or

• in force under the federal laws of Canada, if the Purchase Order is between Spafax Canada Inc, dba Bookmark.

14.4     Severability. If any provision of this Agreement or the application thereof to any Party, person or circumstance shall be invalid, illegal or unenforceable to any extent: (a) such provision or portion shall be deemed to be severed or limited, and this Agreement shall be considered to be thus amended to give effect to the intention of the Parties hereto insofar as that is possible, and (b) the remainder of this Agreement and the application thereof shall not be affected and shall be enforceable to the fullest extent permitted by law.

14.5     Force Majeure. No Party shall be liable for any failure to perform or any delays in performing its obligations under this Agreement, and no Party shall be deemed to be in breach or default of its obligations set forth in the applicable Purchase Order, if to the extent and for so long as, such failure or delay is due to any causes that are beyond its reasonable control and not its acts or omissions, including without limitation, such causes as acts of God, natural disasters, flood, sever storm, earthquake, civil disturbance, lockout, riot, order of any court or administrative body, embargo, acts of government, war (whether or not declared), acts of terrorism, or other similar causes (“Force Majeure Event”). In the event of a Force Majeure Event, the Party prevented from or delayed in performing shall promptly give written notice to the other Party and shall use commercially reasonable efforts to avoid or minimize the delay. If a Force Majeure Event continues for a period in excess of three (3) months, the Party that is not affected may, by written notice to the affected Party, (a) suspend performance and extend the time for performance for the duration of the Force Majeure Event, or (b) cancel all or any part of the unperformed part of the applicable Purchase Order.

14.6     Airline Crisis. In addition to any other rights or remedies hereunder, and without intending to waive, remove, or limit, or in any way restrict any legal equitable remedy otherwise available to Spafax, in the event of any terrorist attack, epidemic or pandemic, war, anti-terrorist activity or similar events which substantially and materially impacts Spafax, the Airline(s), and/or the airline industry generally (“Airline Crisis”), Spafax shall notify Distributor as soon as reasonably practical of such Airline Crisis (with email being deemed sufficient for this purpose) (“Airline Crisis Notification”), and at Spafax’s sole discretion, the Parties shall work together in good faith to determine a new License Period and a reduced License Fee (if any) for the remainder of the Term.

15. Changes to Standard Terms and Conditions. Spafax reserves the right to change any of the terms and conditions contained in the Standard Terms and Conditions or any policy or guideline, at any time and in its sole discretion. If Spafax makes a change, it will revise the “last updated” date at the top of Standard Terms and Conditions. Any changes will be effective immediately.

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