End User Agreement
PLEASE REVIEW THIS END USER SERVICES AGREEMENT (THIS "AGREEMENT") CAREFULLY, AS IT CONSTITUTES A LEGAL AGREEMENT BETWEEN YOU ("YOU" OR "CONTENT REGISTRANT") AND AUDIBLE MAGIC CORPORATION ("Audible Magic" OR "WE").
IN ORDER TO USE AUDIBLE MAGIC’S CONTENT REGISTRATION SERVICES (the “Services), 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.
a. “Audible Magic Content Registration Program” means the program under which Audible Magic’s fingerprinting software utilities are used to create Fingerprints of Content. Fingerprints submitted by content registrants under the Audible Magic Content Registration Program may be included in the Reference Database used to enable users of Audible Magic’s Content identification services to identify Content.
b. “Business Rule” means the rule, if any, that is returned to a user of Audible Magic’s Content identification services which indicate how Content should be processed. In the absence of any Business Rule designated by the Content Registrant, the default Business Rule will be “Block”.
c. “Content” means copyrightable works such as sound recordings or audiovisual recordings.
d. “Fingerprint” means Audible Magic’s proprietary analytical representation of the contents of an audio or video file that can be compared to other, similarly created analytical representations.
e. “Metadata” means information describing the Content such as, but not limited to, song or video title, artist, copyright date, studio or record company, cover art, and identifiers such as ISRC and UPC codes.
f. “Reference Database” means Audible Magic’s databases of Fingerprints, Metadata and Business Rules used for providing Content identification services.
2) Use of Service:
a) 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.
b) Any data that is provided to you through your use of the Service, including the result of any comparison of any Fingerprint of Content submitted by You with Fingerprints in the Reference Database shall be Confidential Information under paragraph 9 of this agreement.
c) In order to provide the Service, Audible Magic may transmit, upload, register and maintain Content, Fingerprints, Metadata and Business Rules provided by You. By accepting this Agreement, you expressly authorize Audible Magic to do all of these things and allow its use in Audible Magic Content identification services.
4) Single Login. You may register only one Content Registration 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) Passwords. In connection with Audible Magic's provision of the Services, Audible Magic will send to its Content Registrant's designated email address (designated by Content Registrant at the time an account is established), information such as user-IDs and/or passwords which that will enable Content Registrant to access the Software (the "Passwords"). Content Registrant agrees to maintain the Passwords in strict confidence and not to provide the Passwords to any third party. Content Registrant will notify Audible Magic promptly if there is a unauthorized disclosure of a Password to a third party, and Content Registrant will be solely responsible for all liabilities incurred as a result of an unauthorized disclosure resulting from the Content Registrant's negligence or intentional misconduct. Any unauthorized use of user IDs or Passwords by Content Registrant will constitute a material breach of this Agreement.
• Content Registrant – Content Owner may, either directly or through a third party services provider submit Fingerprints of Content using Audible Magic’s online registration facility together with the corresponding Metadata.
• Audible Magic – Audible Magic, or Audible Magic’s authorized designee, shall use Content solely for generation and inclusion of Fingerprints and the corresponding Metadata in Audible Magic’s Reference Database, in order to provide identification services to third parties. Audible Magic shall be responsible for ensuring that its authorized designees comply with the applicable portions of this Agreement when using the Content.
7) Rights – As between Content Registrant and Audible Magic, Content Registrant retains all right, title and interest in and to the Content and Metadata. Except as may be expressly set forth herein, no rights therein are licensed, transferred or assigned to Audible Magic. As between Content Registrant and Audible Magic, Audible Magic retains all right, title and interest in and to the technology used by Audible Magic for generating Fingerprints and in the Fingerprints themselves.
8) Payment – Audible Magic hereby waives all fees hereunder associated with the registration of Fingerprints, Metadata, and Business Rules into its Reference Database. Fees, if any, related to the processing of Fingerprints and Metadata by Audible Magic, and specific deployment and management of Fingerprints, Metadata, and Business Rules will be as agreed upon in writing between Audible Magic and Content Registrant.
9) Acceptance – All requests by Content Registrant for Content registration in Audible Magic’s Reference Database are subject to acceptance by Audible Magic in its sole discretion. Nothing in this Agreement will be construed to require Audible Magic to register any Content.
10) Term – This Agreement commences on the Effective Date and will continue unless and until terminated by either party at any time, for any reason or no reason, upon no less than thirty (30) days written notice.
11) Rights and Obligations on Termination – Upon the termination of this Agreement, Audible Magic will no longer use Content provided by Content Registrant hereunder to generate Fingerprints for Audible Magic’s Reference Database. However, the Fingerprints and Metadata may remain in the Audible Magic Reference Database.
12) Survival – The terms and conditions of Sections 2 (b), 2(c), 6, 7, 11, 12, 14, 15, 16 and 18 shall survive the termination of this Agreement.
13) Authorization – Each party hereto represents and warrants to the other that it has the full power and authority to enter into and fully perform its obligations under this Agreement. Without limiting the generality of the foregoing, Content Registrant represents and warrants to Audible Magic that it owns or controls the copyright to the Content supplied by Content Registrant hereunder or is otherwise legally authorized by the copyright owner of the Content to act on behalf of such owner for the matters set forth herein.
14) Confidentiality – For purposes of this Agreement, the party who discloses Confidential Information shall be known as the “Disclosing Party” and the party who receives Confidential Information shall be known as the “Receiving Party”. Confidential Information” shall mean all information relating to the Disclosing Party’s technology and business, including but not limited to, software products and systems, content files, metadata, business rules, unique Audible Magic identifiers.
a. The Receiving Party shall maintain the Confidential Information in confidence and shall not disclose the Confidential Information to any third party.
b. The Receiving Party shall not, without the prior written approval of the Disclosing Party, use, publish or otherwise disclose to others, any of the Confidential Information. Receiving Party may disclose the Confidential Information to its officers, directors, employees and professional advisors who need access to such information in order to advise Receiving Party under the terms of this Agreement.
c. The Receiving Party shall have no obligation with respect to any portion of such Confidential Information which (i) was known to it prior to receipt from the other party, (ii) is lawfully obtained by it from a third party under no obligation of confidentiality, (iii) is or becomes publicly available other than as a result of any act or failure to act of Receiving Party, or (iv) is disclosed pursuant to any judicial or governmental request, requirement or order; provided, however, the Receiving Party takes all reasonable steps to provide prompt and sufficient notice to the Disclosing Party so that the Disclosing Party may contest such request, requirement or order. If Receiving Party claims that Confidential Information received by it is subject to any of the exclusions contained in clauses (i) through (iv) above, it shall have the burden of establishing the applicability of such exclusion by clear and convincing documentary evidence.
d. The Receiving Party shall return to the Disclosing Party and erase from all electronic media (or, if requested by the Disclosing Party, destroy) any and all records, notes and other written, printed or tangible materials pertaining to the Confidential Information immediately upon termination of this Agreement or upon the written request of the Disclosing Party.
e. Nothing set forth herein shall be deemed to be a transfer or assignment of Confidential Information from the Disclosing Party to the Receiving Party.
f. The Receiving Party agrees that, due to the unique nature of the Confidential Information, the unauthorized disclosure or use of the Confidential Information will cause irreparable harm and significant injury to Disclosing Party, the extent of which will be difficult to ascertain and for which there will be no adequate remedy at law. Accordingly, Receiving Party agrees that Disclosing Party, in addition to any other available remedies, shall have the right to seek an immediate injunction and other equitable relief enjoining any breach or threatened breach of this Agreement. Receiving Party shall notify Disclosing Party in writing immediately upon Receiving Party’s becoming aware of any such breach or threatened breach.
g. In the case of a dispute between Content Registrants, or between Content Registrants and third party users of Audible Magic services, Audible Magic has the right to disclose Content Registrant’s names and other data regarding the Content in question in order to allow the parties to resolve ownership and other disputes.
15) Limitation of Liability - Audible Magic’s liability for any and all loss or damages to Content Registrant shall not exceed greater of (a) $500, and (b) the amount, if any, paid by Content Registrant for the Content Registration or any services furnished hereunder. In the event that Audible Magic willfully breaches this Agreement or uses the Content in any manner not authorized herein, the preceding limitation shall not apply. CONTENT REGISTRANT ALSO AGREES THAT AUDIBLE MAGIC WILL NOT BE LIABLE FOR CONSEQUENTIAL, INDIRECT OR LOST PROFITS DAMAGES EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS PARAGRAPH STATES AUDIBLE MAGIC’S ENTIRE LIABILITY FOR BREACH OF THIS AGREEMENT.
16) Limited Warranty – THE EXPRESS WARRANTIES ABOVE ARE THE ONLY WARRANTIES OF ANY KIND MADE BY AUDIBLE MAGIC AND AUDIBLE MAGIC DISCLAIMS ANY OTHER REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE CORRECTNESS, COMPLETENESS, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
17) License. In the event Audible Magic provides Content Registrant with a copy of Audible Magic’s Digital Fingerprint Generation Software Library, Content Registrant’s use of such software will be subject to the terms of a separate end user license agreement.
18) General – This Agreement contains the entire and only agreement between the Content Registrant and Audible Magic regarding the subject matter hereof, and merged herein are all prior and collateral representations, warranties, promises and conditions, oral or written. If any provision of this Agreement shall for any reason be held illegal or unenforceable, such provisions shall be deemed severable from the remaining provisions of this Agreement and shall in no way affect or impair the validity or enforceability of the remaining provisions of this Agreement. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors in interest and assigns of the parties. This Agreement shall be governed by and interpreted by the laws of the State of California, without regard to its provisions regarding choice of laws. The parties specifically disclaim the UN Convention on Contracts for the International Sale of Goods. Both parties will submit to the jurisdiction of the Federal or, as appropriate, state courts of the State of California, county of Santa Clara, and no other court or venue, to resolve any disputes regarding the interpretation or the subject matter of this Agreement. The parties are, and shall remain, independent contractors and nothing in this Agreement will be construed as constituting the parties as partners or as creating the relationships of employer and employee, franchiser and franchisee, or principal and agent between Audible Magic and Content Registrant. Paragraph headings are for convenience only and shall not be used in construing this Agreement. No waiver or amendment of this Agreement shall be binding on either party unless it is in writing and is signed by an authorized official of Audible Magic and the Content Registrant regardless of any course of conduct by the parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as of the date Content Registrant clicks on the “Agree” link or button.