Last Revised: January 7, 2019
These Terms take effect when you check the box presented with these Terms or, when you access or use the Service, or any part thereof (the "Effective Date") and shall remain in effect for the duration of your use of the Audioburst API as permitted hereunder, unless terminated earlier as set forth below. You may not use the Service and/or the API if you do not accept the Terms. If you are using the Services and/or the Audioburst API on behalf of an entity, such as the company you work for, you represent to us that you have legal authority to bind that entity.
Audioburst may amend, update or modify these Terms and other terms and conditions, from time to time at its sole discretion by posting the changes on the Audioburst website or by otherwise notifying you. If you do not agree to the modified Terms you must provide us with written notice to AudioBurst at firstname.lastname@example.org Your continued use of the Service after the date the modified Terms are posted on the Audioburst website will constitute your binding acceptance of the modified Terms.
"Audioburst API" means the Audioburst application programming interface to be
used on your online services and mobile applications as
described in the Documentation.
"Audioburst Marks" means the Audioburst name, marks and logos and all other
proprietary identifiers used by Audioburst in connection with
the Services, and all trademarks and/or trade names of
Audioburst, whether registered or not.
Information" means any and all information and data, in whatever form,
including whether disclosed orally or in writing, including but
not limited to any and all patent and patent applications, trade
secrets, proprietary and confidential information, ideas,
samples, techniques, methods, technology, works of
authorship, models, inventions, know-how, processes,
equipment, prices, customer and partner information related to
the past, current and future products and services, including
information concerning research, development, financial
matters, procurement, manufacturing, investors, employees,
business relationships, forecasts, sales and marketing plans
and any improvements and enhancements thereof;
information available in premises of a Party entered by the
other Party or representatives thereof; and information
received from others that the disclosing Party is obligated to
treat as confidential.
"Documentation" means all written documents provided or made accessible by
Audioburst to you on https://developers.audioburst.com,
containing the instructions for implementation of the
Audioburst API in connection with the Services under these
"End User" means those individuals end users who have access to use
your Product which contains Audioburst's API in the
"Monetization Owner" means either one of us owning and controlling the
monetization for generating Revenues from, the promotion of
the output provided by the API within your Product from either
monetization platform including (i) ad server, (ii) ad agency, (iii)
advertiser, (iv) End User (the "Monetization Platform") or any of
us paying for generating revenues from your Product
containing Audioburst API.
"Net Revenue(s)" means the gross revenues actually received by the
Monetization Owner from the promotion of the output
provided by the API, using the Audioburst API within your
Products, less duties, distribution costs and third party revenue
share, advertisement costs, insurance, duties, discounts,
adjustments, deferrals, rebates, sales commissions and
incentives, third party license fees, taxes, and similar charges
incurred by the Monetization Owner, if any, with respect to
such promotion of any output provided by the API.
"Revenue Share" means if Audioburst is the Monetization Owner - 25% from the
Net Revenues and if you are the Monetization Owner – 50%
from the Net Revenues."Territory"means Worldwide.
Audioburst Services; Licenses; Updates
Audioburst Services and Content. Subject to the terms, conditions and limitations of these Terms and your compliance therewith, Audioburst hereby grants you a non-exclusive, non-sublicensable, non-transferable, during the Term and in the Territory only, revocable, limited right to access and use the Audioburst API and related information and Documentation (collectively, the “API”) solely in order to allow you to use the Audioburst API, solely as included with the your Product, as contemplated under these Terms (the “Services”).
License to Use Audioburst Marks. For the provision of the Services and subject to the terms, conditions and limitations of these Terms and your compliance therewith, Audioburst hereby grants you a limited, non-exclusive, non-assignable, non-transferable, non-sublicensable, revocable, license, during the Term and in the Territory only, to use and display the Audioburst Marks on copies of and in association with your Products containing the Audioburst API. You may include in your Product the Audioburst Marks and other proprietary rights notices in a manner that would be acceptable and approved in advanced by us (e.g. “powered by Audioburst”). Any goodwill which may be acquired through your use of the Audioburst Marks shall inure solely to the benefit Audioburst. Any other use of any trademark or tradenames or Parties’ name of either Party shall be mutually agreed upon in writing between the Parties prior of such use.
Updates. Audioburst will provide you with periodic updates enhancements and/or fixes for the API as Audioburst otherwise makes available to its customers from time to time ("Updates"). All Updates, once provided, will become part of the API, and subject to these Terms. Audioburst may change the functionality of the Audioburst API from time to time without prior notice to you or your consent.
Restrictions on Use
Except as expressly permitted under these Terms and without limitation, you will not, and will not facilitate or enable others to:
- use any of the Audioburst API and the output provided by the API in a manner circumventing or exceeding the purpose and scope explicitly allowed under these Terms;
- resell, commercialize or otherwise make available or transfer the Audioburst API or output provided by the API, and any part thereof, on a stand-alone basis or for the benefit of anyone other than you solely as part of your Product for the benefit of your End Users;
- reverse engineer, decompile, disassemble, copy, reproduce, create derivative works of, modify, manipulate, translate or derive the source code, underlying ideas, concepts or algorithms of the API and/or the output provided by the API or any portion thereof;
- interfere with, disrupt or disable features or functionality of the API, the output provided by the API or the servers or networks that host them, including without limitation any such mechanism used to restrict or control the functionality, or defeat, avoid, bypass, remove, deactivate or otherwise circumvent any software protection or monitoring mechanisms of the API or the output provided by the API;
- provide use of the API or the output provided by the API on a service bureau, rental or managed services basis or permit other individuals or entities to create links to the API or the output provided by the API or "frame" or "mirror" the API or output provided by the API on any other server, or wireless or internet-based device, or otherwise make available to a third party, any token, key, password or other login credentials to the API or output provided by the API;
- aggregate, analyze or collect the output provided by the API and/or statistical data, regarding the output provided by the API;
- distribute, publish, or allow access or linking to the API or the output provided by the API, from any location or source other than your Product displaying the Audioburst API;
- use the API or the output provided by the API with the intent to design, build, promote or augment any service competitive to Audioburst services or products;
- store, keep or maintain the output provided by the API or any copy thereof;
- use the API in a manner that exceeds reasonable request volume, constitutes excessive or abusive usage or otherwise fails to comply or is inconsistent with any part of the Documentation;
- remove any proprietary notices from the API or the output provided by the API, or any portion thereof;
- directly or indirectly, take any action to contest Audioburst's Intellectual Property rights in the Services, the API or the output provided by the API.
The API or output provided by the API may not be used in a manner that may reasonably harm the goodwill or reputation of Audioburst, including in any way that may:
- be false, inaccurate or misleading;
- infringe on any third party's copyright, patent, trademark, trade secret or other property rights or rights of publicity or privacy;
- violate any law, statute, ordinance, contract, regulation or generally accepted practice in all relevant jurisdictions (including without limitation those governing trade and export, financial services, consumer protection, unfair competition, antidiscrimination or false advertising);
- be defamatory, trade libelous, threatening or harassing;
- promotes illegal gambling, the use of illegal substances, or the consumption of alcoholic beverages or tobacco-related products;
- directed or primarily appeals to children under the age of 13; or
- contain or distribute any malware or other computer programming routines that may damage, detrimentally interfere with or intercept any system or data.
Ownership and Feedback
Ownership. The API is provided access to, not sold, and as between you and us, Audioburst and its affiliates retain and reserves all rights not expressly granted in these Terms. You expressly acknowledge that Audioburst, and to the extent applicable, its licensors, retain all worldwide right, title and interest in and to the API, including all rights in patents, trademarks, trade names, copyrights, trade secrets, know-how, data (including all applications therefor), and all proprietary rights under applicable laws, any other jurisdiction or any treaty. You agree not to do anything inconsistent with such ownership, including without limitation, challenging Audioburst’s ownership of the API or challenging the validity of the licenses granted herein.
You shall solely own all right and title in and to your Product and all upgrades, modifications, adaptations, derivatives, versions, updates to your Product, except the Audioburst API included therein and any output provided by the API (including all upgrades, modifications, adaptations, enhancements, derivatives, versions and updates thereof or thereto).
Feedback. You may provide Audioburst with comments, conclusions, or any other input concerning the API or its evaluation and use thereof (collectively, "Feedback"). You hereby grant Audioburst all rights, title and ownership of such Feedback (including all intellectual property rights therein), and Audioburst may use the Feedback for any and all commercial and non-commercial purposes with no obligation of any kind to you.
Third-Party Content. Notwithstanding the aforementioned, the output provided by the Audioburst API may contain some third-party content (such as text, images, videos, audio, or software). Audioburst may sometimes review such content to determine whether it is illegal, violates Audioburst policies or this Agreement or should be removed for any other reason, and may remove or refuse to display certain content, and you are obligated to remove and/or not display any such related output provided by the API. Should you find any content to be inappropriate, you may inform us at email@example.com.
Publicity. You approve Audioburst's use of your name and logo for Audioburst's marketing activities and Audioburst's website.
You shall promote, market and distribute the applicable feature in your Product containing the Audioburst API.
Minimum Plays. Once you reach the lower of 10,000 play hours or eligible for a minimum of US$ 250 of Revenue Share, in your Product, over the preceding 12 months, you may apply and Audioburst may approve such application at its sole discretion:
- (i) to become a Monetization Owner, which if approved, you may monetize the output provided by the API and pay Audioburst the applicable Revenue Share;
- (ii) to receive from Audioburst, as the Monetization Owner, the applicable Revenue Share; or
- (iii) both (i) and (ii).
Payments. Payments will be made on a quarterly basis after receipt of an invoice issued by the Monetization Owner to the other Party based on monetization reports provided by the Monetization Platform. All Payments will be made within 90 days of receipt from the end of the quarter.
Record Keeping. Each Party will maintain accurate and adequate books and records directly related to their respective obligations to one another under these Terms (the “Audit Information”). The Audit Information will be maintained during the Term and for one (1) year thereafter.
Audits. Each Party shall have the right to carry out audits upon request by written notice from one Party (the “ Requesting Party”) to the other (the “Party-to-be-audited”) which may be made no more frequently than once per year during the Term and for one (1) year thereafter (unless the Requesting Party has a reasonable basis is based on documented evidence, that non-compliance has or imminently will occur). In each case, the Party-to-be-audited will provide a nationally recognized or similarly qualified and reputable independent certified public accountant (“Auditor”) selected by the Requesting Party and approved by the Party-to-be-audited (such approval not to be unreasonably delayed or withheld) with access to that Party’s Audit Information solely for purposes of conducting an audit of the Party-to-be-audited’s compliance with its obligations under these Terms. The Requesting Party will provide the Party-to-be-audited with at least thirty (30) days’ prior notice of any audit. At the Party-to-be-audited’s request, the Requesting Party’s Auditor will execute the Party-to-be-audited’s standard confidentiality agreement prior to being provided access to any of Party-to-be-audited’s Audit Information, which agreement will permit the auditor to share the audit report with the Requesting Party. To the extent practicable, the Party-to-be-audited may choose to provide the Auditor with electronic copies of its Audit Information for review by the Auditor in its own offices. Physical inspection of Audit Information will be conducted during regular business hours at the facilities of the Party-to-be-audited. The Auditor may be escorted when on premises of the Party-to-be-audited and will not unreasonably interfere with the Party-to-be-audited’s normal course of business. Except as otherwise set forth herein, Requesting Party will bear the cost of the audit. If an audit reveals that Party-to-be-audited underpaid any fees payable to Requesting Party in the period being audited, Party-to-be-audited will promptly remit to Requesting Party the full amount of such underpayment plus interest at the lower of one percent (1%) per month or the highest rate permissible by law. In addition, if the underpayment exceeds five percent (5%) of the amounts payable to Requesting Party for the period audited, Party-to-be-audited will also reimburse Requesting Party for all reasonable out-of-pocket costs and expenses incurred to conduct such audit.
Representations and Warranties
You hereby represent and warrant to Audioburst that: (i) you have full power and authority to enter into these Terms and all necessary rights to perform your obligation hereunder according to these Terms; (ii) you are not bound by any other agreement or subject to any other rights which prevent you from entering into these Terms and performing its obligations and exercising its rights hereunder; and (iii) you will comply with the terms of the DPA in the [add link].
Audioburst Monitoring and Use of Information
The Audioburst API is designed to help you enhance your Products. YOU AGREE THAT AUDIOBURST MAY MONITOR THE PRODUCT'S USE OF THE AUDIOBURST API TO ENSURE QUALITY, IMPROVE AUDIOBURST PRODUCTS AND SERVICES, AND VERIFY YOUR COMPLIANCE WITH THESE TERMS. This monitoring may include Audioburst accessing and using your Product, for example to identify security issues that could affect Audioburst or its users. You will not interfere with this monitoring. Audioburst may use any technical means to overcome such interference. Audioburst may suspend access to the Audioburst API by you or your Product without notice if we reasonably believe that you are in violation of these Terms.
You may be given access to certain non-public information, software, and specifications relating to the API, Audioburst Marks and the Services (“Confidential Information”), which is confidential and proprietary to AudioBurst. You may use this Confidential Information only as necessary in exercising your rights granted in these Terms. You may not disclose any of the Confidential Information to any third party without Audioburst’s prior written consent. You agree that you will protect this Confidential Information from unauthorized use, access, or disclosure in the same manner that you would use to protect your own confidential and proprietary information of a similar nature and in no event with less than a reasonable degree of care.
AUDIOBURST AND ITS AFFILIATES EXPRESSLY DISCLAIM AND DO NOT WARRANT OR MAKE ANY REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION REGARDING THE USE, THE INABILITY TO USE OR OPERATE, OR THE RESULTS OF THE SERVICES. OTHER THAN EXPLICITLY PROVIDED IN THIS AGREEMENT, THE SERVICES, THE API AND ANY OUTPUT PROVIDED BY THE API ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS, AND WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF TITLE OR NON-INFRINGEMENT OR IMPLIED WARRANTIES OF USE, MERCHANTABILITY, PERFORMANCE, LAWFULNESS, FUNCTIONALITY, FITNESS FOR A PARTICULAR USE OR SUITABILITY OF THE SERVICES, THE API OR ANY OUTPUT PROVIDED BY THE API FOR ANY PARTICULAR PURPOSE AND ANY WARRANTIES OR CONDITIONS ARISING OUT OF THIS AGREEMENT, COURSE OF DEALING OR USAGE OF TRADE. AUDIOBURST SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY CONTENT PART OF THE OUTPUT PROVIDED BY THE API.
You will defend, hold harmless at your own expense, and indemnify AudioBurst (and our respective employees, shareholders, and directors) from any claim or action brought by a third party, including all damages, liabilities, costs and expenses, including reasonable attorneys’ fees, to the extent resulting from, alleged to have resulted from, or in connection with: (1) your breach of your representations, warranties and obligations herein; (2) the violation of any third party rights including without limitation any privacy right, copyright, trademark, service mark, trade secret or patent by you or by your Product and/or your Product's use of End User's data, or (3) any representation you make relating to the Audioburst API which is not supported by Audioburst’s published functional specifications or the descriptions of the Audioburst API which are contained in these Terms. You will pay the amount of any settlement to which you consent or non-appealable final judgment of a court of competent jurisdiction which may be suffered or incurred by Audioburst in connection with any of the aforementioned claims. You may not enter into any settlement agreement with a third party, which would, in any manner whatsoever, constitute an admission of fault by AudioBurst, not relieve AudioBurst from all liability for such claim or action, or bind AudioBurst in any manner, without the prior written consent of AudioBurst.
Limitation of Liability
IN NO EVENT WILL AUDIOBURST BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND OR ANY LOSS OF OR DAMAGE TO USE, DATA, BUSINESS, GOODWILL OR PROFITS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE USE OF THE SERVICES. OTHER THAN WITH RESPECT TO WILLFUL MISCONDUCT AND GROSS NEGLIGENCE, AUDIOBURST'S AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS UNDER THESE TERMS WILL NOT EXCEED THE AGGREGATED NET REVENUES GENERATED FROM ANY MONETIZATION PLATFORM BY AUDIOBURST DURING THE 12 MONTHS PRECEDING THE CLAIM. INSOFAR AS APPLICABLE LAW PROHIBITS ANY LIMITATION ON LIABILITY HEREIN, THE PARTIES AGREE THAT SUCH LIMITATION WILL BE AUTOMATICALLY MODIFIED, BUT ONLY TO THE EXTENT SO AS TO MAKE THE LIMITATION COMPLIANT WITH APPLICABLE LAW. THE PARTIES AGREE THAT THE LIMITATIONS ON LIABILITIES SET FORTH HEREIN ARE AGREED ALLOCATIONS OF RISK AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
Term and Termination
These Terms will continue to apply until terminated by either you or Audioburst as set out below. Audioburst may at any time terminate its legal agreement with you by providing you reasonable notice of such termination.
You may terminate your agreement with Audioburst at any time by providing written notice to Audioburst at firstname.lastname@example.org. Upon termination of this Agreement, all licenses and rights granted herein shall immediately expire and you must cease all use the Audioburst API, the Documentation and the Audioburst Marks. The parties to these Terms will not be liable to each other for any damages resulting solely from termination of these Terms as permitted under these Terms. Any provisions hereof which expressly or by their nature are required to survive termination or expiration of these Terms in order to achieve their purpose shall survive until it shall no longer be necessary for them to survive in order to achieve that purpose.
These Terms and any matters relating hereto shall be governed by and construed in accordance with the laws of New York and shall be subject to the exclusive jurisdiction of the authorized courts of New York, New York.
These Terms make the entire agreement between Audioburst and you and supersedes any prior agreements, whether written or oral, with respect to the subject matter hereof. In the event that a provision of these Terms is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of these Terms will continue in full force and effect.