AUDIOBURST PUBLISHERS TERMS

AUDIOBURST PUBLISHERS TERMS

Last Revised: June 8th, 2020

  1. General
    1. By registering to the Publisher Platform, or embedding, publishing, distributing or linking to (collectively “embed” or “embedding”) any content uploaded to or made available via our Platform, or which was made available for embedding on our Website and/or App, in the form of Embedded Player on third party Assets, you (hereinafter “Publisher”) hereby agree to these Publisher Terms (the “Publishers Terms”), as may be amended from time to time, in addition to the Terms, which are incorporated herein by reference.
    2. The definitions which appear in these Publisher Terms shall have the meaning ascribed to them in our Terms. 
    3. These Publisher Terms should not be interpreted as derogating from any of the obligations or responsibilities set forth in any other agreement between the Publisher and Audioburst (including the Terms); however, in the event of any conflict between these Publisher Terms and any other agreement, the provisions set forth herein shall prevail, unless specifically stated otherwise in such agreement.
  2. License
    1. Audioburst grants Publisher a limited, revocable, non-exclusive, non-assignable, non-transferable, non-sublicensable license during the term of these Publisher Terms to embed the Embedded Player on the Assets, subject to the terms and restrictions provided herein.
  1. Publisher’s Representations and Warranties
    1. Publisher represents and warrants that:
      1. It has the full right to grant the rights granted hereunder.
      2. It owns and operates the assets, or is otherwise properly licensed to embed the Embedded Player and the Tag on the Assets;
      3. It will not, directly or indirectly, violate these Publisher Terms or the Terms, or infringe upon the rights of any third party, including proprietary, privacy or publicity rights;
      4. It is solely responsible to adopt any necessary measures to limit or restrict access to the Embedded Player, as required by applicable law and/or industry best practices, including with respect to the protection of minors or children; and
      5. It will not embed or promote the Embedded Player in association with any material or content (including any content displayed, made available on or linked from the Asset) which is, or which may be reasonably considered by Audioburst (at its sole discretion) as Objectionable Content.
    2. Publisher further agrees that it will not:
      1. Remove, alter, disable or circumvent any Tag or otherwise interfere with Audioburst’s ability to monitor Listeners’ interaction in accordance with these Publisher Terms;
      2. Engage in any Fraudulent Activity;
      3. Engage in any action or practice that disparages or devalues Audioburst, the Embedded Player, the Advertisements, or the reliability, reputation or goodwill of any of the foregoing, or engage in any action or practice that might impede the performance reliability or quality of the Platform.
      4. Place Embedded Player on Assets that utilize “zombie cookies” and/or “super-cookies”, and/or otherwise circumvent the Listeners’ privacy collection preferences.
    3. Without derogating from Publishers’s representations and warranties under these Publisher Terms, Publisher agrees that Audioburst, or anyone delegated on its behalf shall have the right, but not the obligation, to monitor Publisher’s compliance with the Terms and/or these Publisher Terms, in any form or technology chosen by Audioburst according to its sole discretion. Publisher shall have no claim or demand against Audioburst with respect to such monitoring.
    4. The embedment of the Embedded Player on the Asset is at Publisher’s own risk and Publisher agrees that Audioburst will have no liability arising from its embedment of the Embedded Player on the Asset.
    5. Audioburst is not responsible for any Objectionable Content or information made available on or linked from any Asset or from the Embedded Player. Publisher confirms that it is aware that the majority of the content made available through the Platform is user generated content (“UGC”) and that the sole responsibility for UGC lies with its various respective creators and/or uploaders. Audioburst does not warrant and cannot guarantee that the UGC will not be infringing in any way. It is hereby clarified that in case of infringement or other content issues that may arise with the UGC, Publisher’s sole remedy with respect to such content shall be to submit a written complaint to Audioburst, which will review such complaint and, if applicable, remove such UGC in accordance with its Terms. Audioburst does not monitor, pre-screen or approve UGC (including any translations) made available on the Platform, and Audioburst cannot guarantee its quality, accuracy or fitness for any purpose (“UGC Disclaimer”).
  2. Data Protection
    1. Publisher grants Audioburst a non-exclusive, royalty-free right and license to place the Tag on the Embedded Player and the Advertisements embedded on the Assets and to collect, use and disclose any Data obtained through the Tag, in accordance with the Audioburst Data Protection Addendum (as applicable), which is incorporated herein by reference.
    2. Publisher shall provide its Listeners with a notice and obtain their consent, as required by applicable laws and regulations in connection with the collection, use and disclosure of Data through the use or access to the Embedded Player and the Advertisements, and storing and accessing of cookies or other information on the Listeners’ devices, including with respect to the use of any technological methods for the purpose of collecting such Data (including, without limitation, the Tag and any cookies, web beacons, etc.), and including with respect to displaying interest-based or targeted content.
    3. Without limiting from the foregoing, Publisher shall ensure that end users are provided with a notice that third parties may collect, use and share Data in accordance with their respective privacy policy through an adequate privacy policy which will be presented to end users and which shall address the Publisher’s practices with respect to the collection, use and disclosure of any Data obtained from the end users (including through the Tag). Such privacy policy shall be easily accessible by the end users prior to any collection, use or disclosure of Data.
    4. Without limiting from the foregoing, Publisher shall collect, use or disclose Data in accordance with any applicable laws and with its privacy policy, and shall allow Audioburst to provide any link or notice it deems necessary for the provision of any disclosure in or around the Embedded Player.
  3. Advertisements
    1. Publisher agrees that the Embedded Player may be ad-supported and therefore Audioburst may (but is not obligated to) deliver or include any Advertisements, within or adjacent to the Embedded Player on the Asset(s), for any promotional or marketing purposes, without notice to the Publisher, at its sole discretion and without any obligation to compensate or remit payments to the Publisher for the delivery or inclusion of the Advertisements.
  4. Payments
    1. Publisher shall not be entitled to any compensation for and/or in connection with its embedding of the Embedded Player and/or the Advertisements. In the event that Audioburst and Publisher have entered into a separate and valid written agreement that may include additional terms with respect to any Advertisements, license, development or consultation fees, and or any other financial arrangement that will be agreed upon between the parties thereto, then such compensation shall be pursuant to the terms stated therein and shall be solely calculated and based on Audioburst’s tracking systems (“Consideration”) and no other measurements or statistics of any kind shall be accepted or have any effect. It is hereby clarified that the term Consideration shall mean all revenues recognized and actually collected by Audioburst from the distribution of the Advertisements on the Assets during the term of these Publisher Terms, under these Publisher Terms, net of: (i) third party costs for data provision, behavioral targeting or other similar information related to the Advertisements; (ii) any taxes Audioburst is required to collect, withhold or pay with respect to the Consideration; (iii) credit card or other payment processing fees, bad debt, charge-backs, rebates, refunds, ad serving fees or bidder fees, revenue share, agency fees, third party fees and commissions, make-goods and/or other set-offs of any kind, if any.
    2. Notwithstanding the foregoing, Audioburst shall not be obligated to remit Consideration (and shall be entitled to a refund): (a) in connection with payments that were not fully remitted to Audioburst’s or approved by its third party advertisers; or (b) if determined by Audioburst, at its sole discretion, that Publisher has engaged in Fraudulent Activity or was in breach of these Publisher Terms. It is hereby clarified that Publisher shall not be entitled to receive any additional payment except for the Consideration detailed in a valid and separate written agreement entered between Audioburst and Publisher. 
    3. Publisher is solely responsible for providing and maintaining accurate contact and payment information associated with Publisher Account. Any bank fees and other commissions incurred by Audioburst due to any error or omission of contact or payment information may be deducted by Audioburst from any Consideration due to Publisher.
    4. Audioburst reserves the right to deduct, set off, claw back or charge back any amounts Publisher may owe to Audioburst against any amounts payable or otherwise owing to Publisher.
    5. All payments due to Publisher under these Publisher Terms will be exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT, if applicable) (collectively, “Taxes”). Publisher will be responsible for payment of all Taxes and any related interest and penalties resulting from any payments made hereunder, other than any taxes based on Audioburst’s net income. Audioburst may be obligated by law to obtain tax information from Publisher and payments to Publisher may be withheld until Publisher provides this information or otherwise satisfies Audioburst that Publisher is not a person from whom Audioburst is required to obtain tax information or, if required by applicable law, may be subject to tax withholding.
    6. Audioburst reserves the right to make payments only when the monthly payment due to the Publisher exceeds USD250.00. If the monthly payment does not exceed USD250.00, Audioburst shall have the right to withhold such payments until such time when the total payment owed to Publisher exceeds USD250.00, or until termination of the agreement, whichever is sooner.
    7. All Consideration shall be remitted to Publisher in USD (unless Audioburst decides otherwise) within sixty (60) days as of date of issuance of invoice and subject to its approval by Audioburst.
  5. Confidentiality
    1. During the term of these Publisher Terms and for a period of three (3) years thereafter, each party agrees that it will not disclose or use the Confidential Information of the Disclosing Party without the Disclosing Party’s prior written consent. During such period, each party agrees that it will take reasonable steps, at least substantially equivalent to the steps it takes to protect its own Confidential Information, to prevent the disclosure of the Disclosing Party’s Confidential Information other than to its employees, affiliates, subsidiaries or other agents who must have access to such Confidential Information for such party to perform its obligations or exercise its rights hereunder, who will each agree to comply with this section.
    2. Upon termination or expiration of these Publisher Terms, Receiving Party shall, upon request, return to the Disclosing Party or destroy (at the Disclosing Party’s discretion) all materials containing Confidential Information.
  6. Publicity
    1. Publisher agrees that Audioburst may use the Publisher’s name and logo for advertising and publicity purposes and may refer to the existence of their relationship on the Platform and in press releases, advertising, or marketing materials distributed to prospective partners, and for that purpose Publisher hereby grants Audioburst an irrevocable, perpetual, worldwide license to use Publisher’s name, logo, label or any other trademarks or symbols associated with the Publisher.

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