End User Agreement
PLEASE REVIEW THIS END USER SERVICES AGREEMENT (THIS "AGREEMENT") CAREFULLY, AS IT CONSTITUTES A LEGAL AGREEMENT BETWEEN YOU ("YOU" OR "CUSTOMER") AND AUDIBLE MAGIC CORPORATION ("Audible Magic" OR "WE").
IN ORDER TO USE AUDIBLE MAGIC’S SERVICES, AS DESCRIBED MORE FULLY HEREIN, YOU MUST FIRST READ THIS AGREEMENT AND INDICATE YOUR ACCEPTANCE OF ALL OF THE TERMS AND CONDITIONS SET FORTH BELOW BY SELECTING THE "AGREE" CHECKBOX AT THE END OF THIS AGREEMENT. IF YOU DO NOT ACCEPT ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU SHOULD NOT CHECK THE "AGREE" CHECKBOX AT THE END OF THIS AGREEMENT, IN WHICH CASE YOU WILL NOT BE ALLOWED TO USE THE SERVICES. THIS IS AN AGREEMENT ONLY FOR THE SERVICES DESCRIBED HEREIN AND YOU ARE NOT BEING GRANTED A LICENSE TO ANY SOFTWARE OF ANY KIND.
1) myRightsView Services. Audible Magic’s myRightsView Service provides on demand electronic digital identification of content using Audible Magic’s patented digital fingerprinting technology, registration of content on Audible Magic’s Global Content Registry, and other related ancillary services. "Customer" or “You” means any person or entity for whom the Services are designed or who uses the Services. Pursuant to this Agreement, You are authorized to use the Services for non-commercial purposes only. If You wish to use the Services for commercial purposes, You may contact us at 408-399-6405 to discuss an alternative contractual relationship. In order to provide the Services, Audible Magic is required to transmit, upload and maintain digital media provided by You, and register digital fingerprints and associated meta data and business rules for such content in Audible Magic’s Global Content Registry. By accepting this Agreement, you expressly authorize Audible Magic to do all of these things.
3) Free Trial Tokens. In the event Customer elects to use the Services on a trial basis, Customer will be provided with Trial Tokens. Customer will not be billed for use of the Trial Tokens and these Trial Tokens will be available for use for 30 days (the "Trial Period"). During the Trial Period, Customer may use the Services subject to the subscriber limits posted on the Site. The subscriber limits for the Trial Period are subject to change at any time. Once Customer completes its free trial period or exceeds the Trial Token limit, whichever occurs first, the Trial Period will terminate. Upon such termination, Customer may purchase additional Tokens. Customer's access to the Services will be disabled until payment therefor is received.
4) Single Login. You may register only one myRightsView account. If you attempt to register more than one account Audible Magic may terminate your account subject to the termination provisions of this Agreement.
5) Purchase. Services are purchased using pre-paid Tokens. Pricing is set for individual or bundles of Tokens. One Token shall be required for each media file You upload to our Service. Unused Tokens shall expire one year after the date of purchase. You will not be entitled to a refund for any unused or expired tokens.
6) Meta Data. In offering the Services, we may collect from you content related information ("Meta Data"). You agree to provide a non-exclusive, perpetual, royalty free right for Audible Magic to use this Meta Data in the course of its provision of the Services. You are solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Meta Data, and You are responsible for maintaining, securing and storing all Meta Data in accordance with applicable law. Audible Magic will not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Meta Data.
7) Customer Information. Audible Magic collects certain personal and business-related information about its Customers in order to provide the Services (the "Customer Information"). By accepting this Agreement, You expressly authorize Audible Magic to contact you for marketing purposes by various means, including but not limited to regular mail, email, text messages, instant messages, or telephone using the contact information that You provided when you activated your account.
8) Disclosures of Customer Information. In addition to the uses of Customer Information set forth in Section 7 of this Agreement, Customer agrees that Audible Magic may use the Customer Information in connection with its provision of the Services. If Customer purchased the Services as a result of the marketing efforts of an Audible Magic marketing partner, Customer agrees that Audible Magic may disclose the Customer Information to such marketing partner. Notwithstanding the foregoing, Audible Magic will not provide any Customer Information to any third party without Customer's authorization and will use reasonable efforts to prohibit any third party that receives any such Customer Information from selling or redistributing such Customer Information without Customer's authorization.
9) Passwords. In connection with Audible Magic's provision of the Services, Audible Magic will send to its Customer's designated email address (designated by Customer at the time an account is established), information such as user-IDs and/or passwords which that will enable Customer to access the Software (the "Passwords"). Customer agrees to maintain the Passwords in strict confidence and not to provide the Passwords to any third party. Customer will notify Audible Magic promptly if there is a unauthorized disclosure of a Password to a third party, and Customer will be solely responsible for all liabilities incurred as a result of an unauthorized disclosure resulting from the Customer's negligence or intentional misconduct. Any unauthorized use of user IDs or Passwords by Customer will constitute a material breach of this Agreement.
10) Proprietary Rights. This is an Agreement for provision of services only. Customer expressly acknowledges and agrees that this Agreement does not grant a software license of any kind. All software embedded in the Services (the "Software"), and the Services, are and shall remain the sole and exclusive property of Audible Magic. Accordingly, Customer acknowledges that Audible Magic owns all right, title and interest in and to the Software and the Services, including, without limitation, all United States and international patent rights, copyrights, trademark rights, trade secret rights, fingerprints generated from media content supplied by Customer, and all other proprietary rights pertaining thereto. Except as expressly granted in this Agreement, Customer will not have or acquire any rights or interest in or to the Software or the Services. Customer acknowledges that the Software contains proprietary information and trade secrets of Audible Magic. Customer will not take any actions inconsistent with Audible Magic's ownership of each of Audible Magic's rights in and to the Software. Customer agrees that Customer will not directly or indirectly: (i) assign, distribute, license, sublicense, transfer, sell, rent, lease, time share, grant a security interest in, or otherwise transfer any rights in or to the Software, or make the Software available to third parties, except as authorized by this Agreement; (ii) modify, translate, reverse engineer, decompile or disassemble the Software for any purpose, including without limitation, the creation of derivative works or similar products; (iii) upload, link to or post any portion of the Software on a bulletin board, intranet, extranet or web site; (iv) use or distribute the Software in violation of any applicable laws, regulations or export restrictions; or (v) possess or use the Software in any format other than machine-readable format. All rights in the Software not explicitly granted herein, are reserved by Audible Magic.
11) Use of Services. Customer acknowledges and agrees that it will use the Services only for its "internal business purposes," and that the Services may only be used by Customer's employees or by independent contractors hired by Customer. Customer expressly agrees that it may not use the Services: (i) to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or that would violate third-party privacy rights;(ii) to send or store material containing malicious code, including, without limitation, software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iii) in any manner inconsistent with applicable law, or (iv) in any manner that would subject Customer or Audible Magic to civil or criminal liabilities of any kind. Customer agrees to report immediately to Audible Magic, and to use best efforts to stop immediately, any violation of the terms and conditions set forth in this Section 11 or any of the Policies.
12) Confidential Information. Audible Magic and Customer, as a Receiving Party (as defined below), each agree to hold confidential, not use except as otherwise authorized herein, and protect from disclosure to unauthorized third parties the Confidential Information (as defined below) of the Disclosing Party (as defined below). In the event that the Receiving Party is required by law to disclose Confidential Information of the Disclosing Party, the Receiving Party will provide the Disclosing Party with prompt written notice of such pending disclosure. For purposes hereof, "Confidential Information" means any information disclosed by one party (the "Disclosing Party") to the other party (the "Receiving Party") that relates to such Disclosing Party's business affairs, internal operations, personnel, financial matters, technology, research and development, product plans or offerings, markets, or know-how. Confidential Information will not include information that: (i) was publicly available, or that subsequently becomes publicly available, except by wrongful disclosure hereunder by the Receiving Party; (ii) was in the Receiving Party's possession prior to receipt of the same from the Disclosing Party, as evidenced by the Receiving Party's prior written records; (iii) was received from a third party who was not known by the Receiving Party to be under any obligation of confidentiality with respect to such information; (iv) can be proven by competent evidence to have been independently developed by the Receiving Party; (v) is furnished by the Disclosing Party to a third party without restriction on the third party's right of disclosure; (vi) is approved in writing for release by the Disclosing Party; or (vii) is required to be disclosed by order of court or law.
13) Representations, Warranties and Covenants. Customer represents, warrants and covenants to Audible Magic that: (i) if an individual, Customer he or she is at least eighteen (18) years old; (ii) if an entity, it is a company duly organized and validly existing in good standing under the laws of the state in which it was organized; (iii) it has full power and authority to enter into this Agreement, which, upon its execution hereof, will constitute a legal, valid and binding obligation enforceable against it in accordance with the terms hereof; (iv) all information provided by it in the Service Order and otherwise during the term of this Agreement, is and will be truthful and accurate; (v) its use of the Services will at all times be in accordance with the terms and conditions of this Agreement, the Policies and all applicable laws, rules and regulations; and (vi) it is not directly or indirectly (as an owner, strategic partner or otherwise) engaged in any business relationship or activity that competes with the Services.
14) Disclaimer of Warranties. THE SERVICES ARE PROVIDED "AS IS" AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AUDIBLE MAGIC AND ITS AFFILIATES, LICENSORS, DISTRIBUTORS, DEALERS AND SUPPLIERS (COLLECTIVELY, THE "REPRESENTATIVES") DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING (WITHOUT LIMITATION) ANY WARRANTY AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, TITLE, OR NON-INFRINGEMENT, WITH RESPECT TO THE SERVICES. AUDIBLE MAGIC DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER'S REQUIREMENTS NOR DO THEY GIVE ANY WARRANTY ABOUT THE RESULTS THAT MAY BE OBTAINED BY USING THE SERVICES. AUDIBLE MAGIC DOES NOT WARRANT THAT THE SERVICES WILL BE AVAILABLE AT ALL TIMES, UNINTERUPTED, TIMELY, AND ERROR-FREE.
15) Limitation of Liability. IN NO EVENT WILL AUDIBLE MAGIC OR ANY REPRESENTATIVE BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATED TO THE SERVICES, OR TO THE PERFORMANCE OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, LOSS OF USE, OR LOSS OF PROFITS, EVEN IF AUDIBLE MAGIC OR ITS REPRESENTATIVES HAVE BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. FURTHER, IN NO EVENT WILL AUDIBLE MAGIC AND THE REPRESENTATIVES' TOTAL CUMULATIVE LIABILITY TO CUSTOMER OR ANY OTHER PARTY FOR CLAIMS, LOSSES, OR DAMAGES OF ANY KIND, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, INDEMNITY OR OTHERWISE, ARISING OUT OF OR RELATED IN ANY WAY TO THIS AGREEMENT OR THE SERVICES, EXCEED THE ACTUAL FEES CUSTOMER PAID TO AUDIBLE MAGIC FOR THE SERVICES AS OF THE DATE OF THE CLAIM, LOSS, OR DAMAGE. In the event of any failure, or Audible Magic non-provision, of the Services, Customer's sole and exclusive remedy shall be for Audible Magic to use commercially reasonable efforts to repair or provide the Services.
16) Indemnification. Customer agrees to indemnify, defend and hold harmless Audible Magic, the Representatives, and its and their respective affiliates, officers, directors, stockholders, employees, consultants, representatives and agents from any and all claims, liability, damages and/or costs (including, but not limited to, reasonable attorneys' fees) arising from (i) Customer's negligence or intentional misconduct; (ii) Customer's violation of any applicable law, this Agreement or the Policies; (iii) Customer's breach of any of its representations, warranties or covenants set forth herein; (iv) or Customer's infringement of any intellectual property rights or other rights of any person or entity.
17) Term and Termination. The term of this agreement will continue until either party terminates the agreement. Audible Magic may terminate this Agreement at any time if Customer does not abide by the terms of this Agreement. In the event of any suspected violation of the terms, conditions or restrictions set forth in this Agreement, Audible Magic may immediately disable Customer's access to the Services and suspend provision of them. Any default in the performance of any of Customer's obligations hereunder or use of the Services or Audible Magic’s property in a manner not authorized by or prohibited by this Agreement shall be considered a material breach of this Agreement and shall entitle Audible Magic to terminate immediately this Agreement, to terminate Audible Magic's provision of the Services, and to pursue all available equitable and legal remedies. Customer may terminate this Agreement by providing written notice to Audible Magic in accordance with the provisions of Section 26 below; however, Customer expressly agrees that the provisions contained herein regarding Confidential Information (Section 12), Disclaimer of Warranties (Section 14), Limitation of Liability (Section 15), Indemnification (Section 16), and such other provisions of this Agreement that by their nature and context are intended to survive the performance and termination of this Agreement shall survive any such termination.
18) Governing Law. This Agreement will be governed by the laws of the State of California. The rights and obligations of the parties under this Agreement shall not be governed by the provisions of the United Nations Convention on Contracts for the International Sale of Goods.
19) Arbitration. Any dispute or controversy arising under, out of, or in connection with this Agreement shall be resolved by binding arbitration under the commercial rules of the American Arbitration Association before a single arbitrator. Any such arbitration shall be conducted in Los Gatos, California, U.S.A. Judgment upon any award may be entered in any court of competent jurisdiction. The arbitrator shall be designated by mutual agreement of the parties or, if the parties cannot agree on an arbitrator, within ten (10) days after a request for arbitration hereunder, each party shall designate one (1) arbitrator and the arbitrators so designated shall designate a third arbitrator who shall conduct the arbitration. The decision of the arbitrator shall be binding and conclusive upon the parties. Notwithstanding the foregoing, Audible Magic shall have the right to seek injunctive relief or other equitable or legal remedies in a court of competent jurisdiction in the State of California, to which jurisdiction, for such purpose, Customer hereby irrevocably consents.
20) Relationship. This Agreement does not create a partnership, joint venture or agency relationship between Audible Magic and Customer. Customer does not have any right, power, or authority to act as a legal representative of Audible Magic.
21) Assignment. Customer may not transfer, assign, sublicense, or delegate any right or duty under this Agreement to another entity or person without the express written consent of Audible Magic. Any such transfer, assignment, sublicense or delegation without consent will be null and void.
22) Severability. In the event that a court of competent jurisdiction determines that any portion of this Agreement is illegal, invalid or unenforceable, such portion will not affect or impair the legality, validity or enforceability of any other provisions of this Agreement.
23) Survival. The provisions of this Agreement that by their nature and context are intended to survive the performance and termination of this Agreement, will survive the completion of performance and termination of this Agreement.
24) Entire Agreement. This Agreement constitutes the entire agreement and understanding between Audible Magic and Customer and supersede all prior and contemporaneous agreements, documents, and proposals, oral or written, between the Audible Magic and Customer regarding the myRightsView Service, except for any prior agreement addressing confidentiality, which will continue in effect according to its terms following the execution, performance and termination of this Agreement.
25) No Waivers. Audible Magic's failure to exercise any of its rights under this Agreement will not constitute or be deemed to constitute a waiver or forfeiture of such rights or of any preceding or subsequent breach or default.
26) Notice. Audible Magic may provide Customer with general notice by electronic mail to Customer's e-mail address of record, or by written communication sent by first class mail or pre-paid post to Customer's address of record, or to such other address designated by Customer and communicated to Audible Magic in accordance with the notice delivery provisions of this Section 25. Such notice shall be deemed to have been given upon the expiration of forty-eight (48) hours after mailing if sent by first class mail or pre-paid post, or twelve (12) hours after sending if sent by electronic mail. Except as otherwise provided herein, Customer must give notice to Audible Magic (such notice shall be deemed given when received by Audible Magic) by using one of the following means: 1) letter sent by confirmed facsimile to Audible Magic at the following fax number: (408) 399-6406; 2) letter delivered by a nationally recognized overnight delivery service; or 3) by first class postage prepaid mail to Audible Magic at the following address: Audible Magic Corporation, Attn: Support Department; 985 University Ave, Suite 35, Los Gatos, CA 95032. Notwithstanding the foregoing, Customer must adhere to the terms and conditions set forth in Section 17 above to provide Audible Magic with notice of its intention to terminate this Agreement. Either Customer or Audible Magic may designate a different mailing address for notice delivery by providing the other party with such different address in accordance with the notice delivery provisions of this Section 28.
27) Consent to Use of Electronic Signatures and Records. As a convenience and courtesy to you, Audible Magic provides access to its Services online. This requires you to enter into agreements or receive notices electronically. Accordingly, you acknowledge and agree that by clicking "I Agree" or "I Accept" anywhere on the Site:
a) you agree to conduct electronically the particular transaction into which you thereby enter including, without limitation, entering into this Agreement;
b) you have read and understand the electronic copy of electronic contracts, notices and records, including, without limitation, this Agreement, the Policies and any amendments hereto or thereto;
c) you agree to, and intend to be bound by, the terms of the particular transaction into which you thereby enter;
d) you are capable of printing or storing a copy of electronic records of transactions into which you enter including, without limitation, this Agreement and any amendments hereto;
e) you agree to receive electronically information about the Services and other electronic records into which you thereby enter including, without limitation, this Agreement.
(1) If you wish to withdraw this consent, please contact us at 408-399-6405, in which case Audible Magic shall have the right to terminate your use of the Services.
28) Export Restrictions. Customer acknowledges that the Services may be subject to U.S. or other countries' export control laws and regulations. Customer agrees not to export, or transfer for the purpose of re-export, the Services (including technical data) in violation of any U.S. or other applicable export control laws and regulations.
29) Miscellaneous. Except as otherwise expressly set forth herein, this Agreement may be amended or modified only by Audible Magic and may not be modified by course of conduct. The section headings used herein are for convenience only and will not be given any legal meaning. This Agreement is made for the benefit of the parties only and there are no intended third party beneficiaries.