Last Revised: July 8th, 2020
- You acknowledge that these Terms are binding, and you affirm and signify your consent to these terms, by either: (i) clicking on a button or checking a checkbox for the acceptance of these Terms; (ii) Registering to, using or accessing our Platform, whichever is earlier; or (iii) Signing an Insertion Order (the “Effective Date”).
- Certain parts of our Platform require that you register and create an account (such as a Listener Account, a Creator Account or a Publisher Account (as defined below); these together shall be referred to as “Audioburst Account(s)“). When you create your Audioburst Account, you must provide us with up-to-date, accurate and complete information. You may not impersonate any person or entity or misrepresent your affiliation with any person or entity.
- Please note that depending on your usage of our Platform, the following additional terms shall apply:
- If you visit or create a Listener account on our Platform (“Listener Account”) – only these Terms shall apply.
- If you create an account on Creator Platform (“Creator Account”) – these Terms and the Audioburst Creator Terms shall apply.
- If you create an account on the Publisher Platform (“Publisher Account”) or embed or distribute an Embedded Player – these Terms and the Publisher Terms shall apply.
- You are responsible for safeguarding your password or log-in credentials when creating an Audioburst Account. You agree that you will not disclose your password to any third party and that you will take sole responsibility for any activities or actions under your Audioburst Account, whether or not you have authorized such activities or actions. You hereby release Audioburst from any and all liability concerning such activities or actions and you will immediately notify us of any unauthorized use of your Audioburst Account
- “Advertisements” shall mean any advertising materials (including content recommendations and/or any form of sponsored materials), in whatever format (including graphics, links, audio, display ads, video ads, etc.), as made available or delivered through the Platform.
- “Assets” shall mean websites, social network pages, blogs, mobile apps or other online properties controlled and operated by, or otherwise sufficiently licensed to Publisher.
- “Confidential Information” shall mean any non-public, proprietary, confidential and/or trade secret information of a party hereof, whether furnished before or after the date the Terms entered into effect, and regardless of the manner in which it is furnished, and which given the totality of the circumstances, a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive, including, without limitation, research and development, formulas, programming, know-how, proprietary knowledge, technology and any related documentation, engineering, production, operation and any enhancements or modifications relating thereto, and other designs, drawings, engineering notebooks, industrial models, software and specifications, financial and marketing information, business plans, business procedures, clients’ list, business partners or other information disclosed by one of the parties hereto (the “Disclosing Party”) to the other party (the “Receiving Party”) either directly or indirectly in writing, orally or by drawings. Confidential Information shall not, however, include any information which: (i) was known to the Receiving Party or in its possession at the time of disclosure without any confidentiality obligation; (ii) becomes publicly known and made generally available after disclosure by the Disclosing Party to the Receiving Party through no action or inaction of the Receiving Party; (iii) is independently developed by the Receiving Party without reliance on or use of the Confidential Information or any part thereof and the Receiving Party can show written proof of such independent development; (iv) is required to be disclosed by applicable law, regulatory authority or a valid court order, provided that the Receiving Party shall provide the Disclosing Party with reasonable prior written notice of the required disclosure in order for the Disclosing Party to obtain a protective order and the disclosure shall be limited to the extent expressly required; (v) is approved for release by prior written authorization of the Disclosing Party; or (vi) the Receiving Party can demonstrate was disclosed by the Disclosing Party to a third party without any obligations of confidentiality.
- “Data” shall mean all data transmitted to Audioburst through the Tag (as hereinafter defined), including metadata (such as title, author, description and other information pertaining to the Embedded Player), including any personal and non-personal information pertaining to Listeners collected through their interaction with the Embedded Player, Advertisements and/or with the Asset.
- “Fraudulent Activity” shall mean (a) the display, promotion, distribution or interaction with the Embedded Player and/or the Advertisements in any manner which engages with anything other than natural persons viewing actually displayed Embedded Player and/or Advertisements in the normal course of using any device, including, without limitation, browsing through online, mobile or any other technology or platform, as determined by Audioburst in its sole discretion which may lead to falsely generated or artificially-inflated revenues; and/or (b) the automatic redirection of visitors, blind text links, misleading links, forced clicks, etc. from the Platform and/or the Embedded Player and/or the Advertisements. Without limiting the foregoing, Fraudulent Activity shall include any of the following practices:
- Inclusion or counting of views or clicks by:
- A natural person who has been engaged for the purpose of viewing the Embedded Player and/or the Advertisements, whether exclusively or in conjunction with any other activities of that person (including, without limitation, employing any means to induce, encourage, incentivize or trick the Listeners into viewing or clicking on Embedded Player and/or Advertisements);
- Non-human visitors (such as bots); and
- Inclusion or counting of views that are not actually visible to the human eye, discernible to human senses or perceived by a human being;
- Masking or cloaking the Asset’s URL, or employ any means to obscure the true source of traffic, or conceal conversions;
- Generating automated, fraudulent or otherwise invalid impressions, inquiries, views, clicks or conversions, or artificially inflating impressions, inquiries, views, clicks, or conversions, or employing any misleading, deceptive or inappropriate practices (such as repeated manual clicks);
- Installing or transmitting Malicious Code (as hereinafter defined).
- Inclusion or counting of views or clicks by:
- “Malicious Code” shall mean viruses, worms, malware, spyware, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs, including code that is intended to or has the effect of misappropriating, hijacking, commandeering, or disrupting access to or use or operation of any information, device, hardware, system or network.
- “Moral Right(s)” shall mean any rights to claim authorship of a Creator Content to object to or prevent the modification of any Creator Content, or to withdraw from circulation or control the publication or distribution of any Creator Content, and any similar right existing under any applicable judicial or statutory law or treaty.
- “Objectionable Content” shall mean content that promotes or contains links to content that is (i) pornographic, sexually explicit or obscene, (ii) harassing, threatening, abusive, inflammatory or racist, (iii) illegal, contrary to public policy or that could facilitate the violation of any applicable law, regulation or government policy, (iv) libelous or defamatory, (v) infringes upon the intellectual property rights of any third party, including copyrights, trademarks, trade names, trade secrets or patents of such third party; (vi) violates the privacy, publicity, moral or any other right of any third party; (vii) offers or disseminates any fraudulent goods, services, schemes, investment opportunities, promotions or advice not permitted by law; (viii) promotes illegal gambling, the use of illegal substances, or the consumption of alcoholic beverages or tobacco-related products; (ix) directed or primarily appeals to children under the age of 16; (x) harmful to Audioburst’s or any other party’s systems and networks, including Malicious Code, adware, spyware or drive-by download applications; (xi) violates any obligation of confidentiality; or (xii) unacceptable in Audioburst’s sole discretion.
- “Proprietary Rights” shall mean all intellectual property rights, including, without limitation: (a) all inventions, whether patentable or not, all improvements thereto and derivatives thereof, and all patents and patent applications; (b) all registered and unregistered: marks, trademarks, service marks, trade names, trade dress and associated logos, domain names and registrations and applications for registration thereof; (c) all copyrights in copyrightable works, all other rights of authorship, including without limitation moral rights, and all applications and registrations in connection therewith; (d) all trade secrets and Confidential Information; (e) all rights in databases and data compilations (including, with respect to Audioburst, the Data), whether or not copyrightable; and (f) all copies and tangible embodiments of any or all of the foregoing (in whatever form, including electronic media).
- “Creator Content” means any content or materials uploaded or submitted by Creators (in whatever format, including text, photos, images, animations, graphics, logos, designs, links, audio, music and video files) via the interactive content formats that are included in the Platform, and/or other content (such as posts, comments or landing pages), submitted through or on the Platform, or any other content or materials provided by the Company for the purpose of using the Platform.
- “Listeners” shall mean any individual visiting or interacting with the Platform (including by registering with a Listener Account or interacting with the Embedded Player), excluding the Creators and the Publishers.
- You may use our Platform only if you can form a binding contract with Audioburst. Any use or access by anyone under the age of 18 is prohibited. By accessing this Platform, you certify to us that you are at least 18 years old.
- You can use the Platform either individually, or on behalf of employer or any entity which you represent. In case you represent your employer or another entity, you hereby represent that: (i) you have full legal authority to bind your employer or such entity to these Terms; and (ii) after reading and understanding these Terms and upon subscription you agree to these Terms on behalf of your employer or the respective entity, and these Terms shall bind your employer such entity. Please note that you are deemed as an authorized representative of your employer or any entity if you are using your employer’s or the entity’s email address in registering to the Platform.
- License and Restrictions
- Subject to these Terms, we grant you a limited, non-exclusive, non-transferable, and revocable license to access and use our Platform as provided herein.
- You may not, and may not encourage or assist others to:
- Publish, distribute, duplicate, sell, re-sell, disclose, “frame”, market, license, sublicense, rent, lease, display, provide, transfer or make available the Platform or make any other use of the Platform (including the Embedded Player or any content available therefrom), any portion thereof or any content displayed therein, to any third party, except as explicitly permitted in these Terms or with our prior written permission;
- Modify, remove, edit, amend, truncate, obscure, bypass or reorder any aspect of the Embedded Player or the Advertisements, unless Audioburst makes available the means for the foregoing through an explicit embedded feature or functionality offered by Audioburst in the Platform and to the extent enabled by such feature or functionality;
- Download, extract, republish, retransmit, reproduce or make any other use of the Embedded Player (or any portion thereof) as a stand-alone file;
- Decompile, reverse engineer, disassemble, enhance, or otherwise make any attempt to discover the source code of, hack, or create derivative works from the Platform (including the Embedded Player or any content displayed or available therefrom) or any portion thereof.
- Copy, crawl, index, cache or store any information derived by Audioburst, or use any robot, spider, data gathering or extraction tool, or similar mechanisms, with respect to the Platform (including the Embedded Player or any content available therefrom) and/or any underlying technology;
- Edit, remove, obscure or alter any credits, watermarks, tradenames, trademarks, logos, service marks or copyright notices set on Platform (including the Embedded Player or any content available therefrom), or remove or obscure the attribute/hyperlink to Audioburst;
- Use the Platform (including the Embedded Player or any content available therefrom) and/or any underlying technology to introduce any routine, device or other undisclosed feature, including a so-called time bomb, virus, software lock, drop dead device, malicious logic, worm, Trojan horse, or trap door, that is designed to delete, disable, deactivate, interfere with or otherwise harm any software, program, data, device, system or service, or which is intended to provide unauthorized access or to produce unauthorized modifications.
- Use the Platform or register with an Audioburst Account for any commercial, promotional, endorsement, advertising, merchandising or any non-personal purposes, including through any use of the Platform (such as by creating or embedding Embedded Player) that directly or indirectly derives a commercial benefit or financial gain, except with our prior and explicit approval, on terms to be agreed upon in writing.
- We may edit, modify, disable access or remove any content or feature from our Platform (including from the Embedded Player), for any reason, at any time and without prior notice. We also reserve the right to remove or disable access to any content or material posted, uploaded, published or incorporated in or to the Platform, including by any customers that are repeated infringers of our policies.
- If you choose to submit comments, ideas or feedback to our Platform, you agree that we are free to use them without any restriction or compensation to you.
- Proprietary Rights
- All Proprietary Rights, titles and interests in and to the Platform, including compilations, digital conversions, magnetic translations, software and other materials related to the Platform are and shall at all times remain the sole and exclusive property of Audioburst, and are protected by applicable intellectual property laws and treaties.
- All materials and contents (other than the Creator Content) displayed, made available, included, incorporated, uploaded, posted, published, contributed, performed or used on the Platform, which were created by or provided by Audioburst (together “Audioburst Content”), are:
- The sole property of Audioburst and/or third parties, as applicable;
- Protected by applicable intellectual property rights, including copyright laws; and
- May only be used in accordance with these Terms.
- All data related to the Platform or collected through the Platform (including through the use of tags, pixels, cookies, scripts or any other software components) shall be the sole property of Audioburst. All trademarks, service marks, trade names, logos, and any other proprietary designations of Audioburst used herein, are trademarks or registered trademarks of Audioburst. Any other trademarks, service marks, trade names, logos and any other proprietary designations are the trademarks or registered trademarks of their respective parties. In addition, the arrangement and compilation of the Websites and/or the App (including, without limitation, the “look & feel”) are the exclusive property of Audioburst and are protected by copyright laws.
- All rights not expressly granted to you in these Terms are reserved by Audioburst.
- The Platform contains Creator Content. Such Creator Content is protected by copyrights, trademarks, service marks, or other proprietary rights and laws. You shall abide by and maintain all copyright notices, information, and restrictions contained in any content accessed through the Platform.
- Reporting Abuse
- If you feel that any person or content is abusing our policies, or otherwise violating your rights, please contact us at: firstname.lastname@example.org. Be sure to identify the specific content and the reason you feel it should be removed.
- Copyright Policy
- In the appropriate circumstances and under our sole discretion, we may disable or terminate the Audioburst Accounts of customers who repeatedly infringe or are repeatedly charged with infringing the copyrights or other intellectual property rights of others. In accordance with the Digital Millennium Copyright Act of 1998, we will respond expeditiously to claims of copyright infringement committed using the Platform that are reported to Audioburst’s Designated Copyright Agent, identified in the sample notice below.
- If you are a copyright owner, or are authorized to act on behalf of one, and you believe in good faith that any material or content made available on or through the Platform has been used or exploited in a manner that infringes or violates any work or other intellectual property you own or control, please report the alleged copyright infringements taking place on or through the Platform by completing the following DMCA Notice of Alleged Infringement (“Notice“) and delivering it to Audioburst’s Designated Copyright Agent. Upon receipt of the Notice as described below, we will take whatever action, in our sole discretion, as we deem appropriate, including removal of the challenged material from the Platform.
- You can submit a Notice by: Providing the following information to our Designated Copyright Agent: Identify the copyrighted work that you claim has been infringed, or – if multiple copyrighted works are covered by this Notice – you may provide a representative list of the copyrighted works that you claim have been infringed.
- the material that you claim is infringing (or to be the subject of infringing activity) and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material, including at a minimum, if applicable, the URL of the link(s) shown on the Platform where such material may be found; and
- the reference or link to the material or activity that you claim to be infringing, that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate that reference or link, including at a minimum, if applicable, the URL of the link(s) shown on the Platform where such reference or link may be found.
- Provide your contact details – mailing address, telephone number, and, if available, email address.
- Include both of the following statements in the body of the Notice: “I hereby state that I have a good faith belief that the disputed use of the copyrighted material or reference or link to such material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use).” “I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.”
- Provide your full legal name and your electronic or physical signature. Deliver this Notice, with all items completed, to Audioburst’s Designated Copyright Agent:
- Via email: email@example.com
- Via postal address:
Attn: Designated Copyright Agent
28 Hamilton Avenue,
Palo Alto, California
- Third Party Software
- Portions of the Platform may include software that we license from third parties, which may include open source software or related components (“Third Party Software”) and is subject to the terms imposed by third party licensors. We do not make any warranty with respect to Third Party Software. For further information about Third Party Software, please visit here . You agree that your use of the Platform is subject to the applicable Third Party Software referred to therein, as updated from time to time.
- Audioburst may hire other third parties to perform certain business-related functions, such as processing payments on its behalf (“Service Providers”). Audioburst’s Service Providers may request that the customer will provide certain personal data (e.g. legal name, address, date of birth etc.) for the purpose of providing their services and complying with its obligations and any federal and state laws and regulations. Some Service Providers may also communicate directly with the customers. Any information provided to such third party will be confidential and only be used for the intended purpose.
- Audioburst may terminate or suspend the licenses provided herein at any time and cease providing you access to our Platform in its sole discretion or if: (i) you violate these Terms or the Publisher Terms (as applicable to you); (ii) infringe or accused of infringing the intellectual property or other rights of others; (iii) if you violate any terms, restrictions or limitations specified in any additional agreement(s) you may enter into with Audioburst or that may apply to your specific use of the Platform; or (iv) if you otherwise create risk or possible legal exposure for us (“Termination”).
- Termination will be without any compensation or liability of Audioburst and shall not relieve any customers of any obligations arising or accruing prior to such Termination or limit any liability which customer otherwise may have to Audioburst, including without limitation any due payments or indemnification obligations contained herein.
- Termination of a Listeners’ and/or customers’ access to and use of the Platform shall not relieve Listener and/or customer of any obligations arising or accruing prior to such termination or limit any liability which Listener and/or customer otherwise may have to Audioburst, including without limitation any indemnification obligations contained herein.
- To the fullest extent permitted by law, you agree to indemnify and hold Audioburst harmless from and against all damages, liabilities, losses, costs and expenses of any kind (including reasonable attorneys’ fees and costs) arising out of: (a) your breach or alleged breach of the Terms, the Creator Terms or the Publisher Terms; (b) any activity or omission in which you engage on or through the Platform (including, where applicable, your Creator Content or Asset; (c) your violation or alleged violation of any law or the rights of any third party, including any actual or alleged infringement or other violation of a third party’s intellectual property rights; (d) your use of Platform, including as a result of a mistake or error; (e) your breach or alleged breach of any Third Party Software licenses; and/or (f) your exercise of any of your rights under the licenses provided herein.
- Limitations on Liabilities
- To the maximum extent permitted by law, Audioburst (including its and its subsidiaries’ shareholders, directors, officers, employees, partners and agents) shall not be liable for any personal injury, indirect, incidental, special, exemplary, consequential or punitive damages, or any loss of profits or revenues (regardless of whether we were advised of the possibility of such damages), whether incurred directly or indirectly, or any loss of data, use, good-will, or other intangible losses.
- In no event shall Audioburst’s (including its and its subsidiaries’ shareholders, directors, officers, employees, partners and agents) aggregate liability for all claims relating to the Platform exceed the higher of: (a) one thousand U.S. Dollars (U.S. $1000.00) or (b) the fees paid, if any, to Audioburst for the use of the Platform in the six (6) month period preceding the events giving rise to the liability. Applicable laws may not allow the limitation or exclusion of liability or incidental or consequential damages, so the above limitation or exclusion may not apply to you. In such cases, our liability will be limited to the fullest extent permitted by applicable laws.
- Warranty Disclaimer
- The Platform and all included content (including any Creator Content, the Embedded Player and/or the Advertisements) are provided on an “AS IS” and “AS AVAILABLE” basis without warranty of any kind. We specifically disclaim any and all warranties, express or implied, and conditions of merchantability, title, fitness for a particular purpose, and non-infringement. We do not guarantee that the Platform (including the Embedded Player and the Advertisements) and all included content will always be complete, accurate, safe, secure, bug-free or error-free, or that the Platform and all included content will always function without disruptions, delays or imperfections. We may change, suspend or discontinue the Platform (or any part thereof, including the Audioburst Content) at any time, including the availability of any feature or database, without notice or liability. In addition, we may impose limits on certain features and services or restrict Listener’s Creator’s and Publisher’s access to the Platform (or any part thereof) without notice or liability.
- We do not control or direct Listeners’, Creators’ or Publishers’ actions on our Platform and are not responsible for the content or information Listeners, Creators or Publisher transmit or publish on or through our Platform.
- Although we reserve the right to do so, we do not regularly monitor, pre-screen or approve Creator Content. Audioburst accepts no responsibility with regards to any Creator Content. The content that appears or made available through our Platform is intended for informational, educational or entertainment purposes only. Before you act on information that you’ve found on our Platform, you should confirm any facts that are important to your decision
- To the fullest extent permitted by law, we disclaim any responsibility or liability for the accuracy, reliability, availability, completeness, operability of the Platform or to any content included in the Platform.
- You expressly acknowledge and agree that the use of the Platform is at your sole risk and that the entire risk as to satisfactory quality, performance, accuracy and efforts is solely with you.
- Disputes and Governing Law
- These Terms, the Creator Terms and the Publisher Term , and your use of the Platform shall be governed by the laws of the State of Israel, without respect to conflict of laws principles. You and Audioburst agree to submit to the personal jurisdiction of competent courts located in Tel-Aviv, Israel, for any actions not subject to the Arbitration section below.
- Any cause of action by you with respect to these Terms, Creator Terms and the Publisher Terms must be instituted within one (1) year after the cause of action arose or be forever waived and barred.
- For any dispute, claim or controversy arising out of or in relation to these Terms, the Creator Terms and the Publisher Terms, or to the breach, termination, enforcement, interpretation or validity thereof, or to your access or use of the Platform (together “Dispute”), you agree to first contact us and attempt to resolve the Dispute with us informally. If Audioburst has not been able to resolve the Dispute with you informally, you and we agree to resolve any Dispute by binding individual arbitration. Any provision of applicable laws notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with these Terms, Creator Terms and the Publisher Terms. The arbitration shall be conducted in Israel. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Audioburst submit to the arbitrator, unless the arbitrator determines that a hearing is necessary.
- Third Party Software
- Nothing in this section shall prevent either party from seeking injunctive or other equitable relief from the courts to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights and for matters related to data security or unauthorized access to the Platform. All claims must be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding, and, unless we agree otherwise, the arbitrator may not consolidate more than one person’s claims.
- You agree that, by entering into these Terms, Creator Terms and/or the Publisher Terms (as applicable), you and Audioburst are each waiving the right to a trial by jury or to participate as a class representative or class member on any class claim you may have against us including any right to class arbitration or any consolidation of individual arbitrations. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person, if we are a party to the proceeding.
- We may revise these Terms, the Creator Terms and the Publisher Terms from time to time, in our sole discretion and the most current version will always be posted on our Websites and/or App (as reflected in the “Last Revised” heading). We encourage you to review these Terms, Creator Terms and the Publisher Terms regularly for any changes. By continuing to access or use the Platform after any revision becomes effective, you agree to be bound by the revised Terms, Creator Terms and/or the Publisher Terms (as applicable). If you do not agree to the new Terms, Creator Terms and/or the Publisher Terms (as applicable), please stop accessing or using the Platform.
- We reserve the right to determine the form and means of providing notifications to you, and you agree to receive legal notices electronically if we so choose.
Third Party Beneficiaries
- Audioburst’s subcontractors and third party service providers are intended third party beneficiaries of these Terms, the Creator Terms and the Publisher Terms (as applicable) and upon your acceptance of these Terms, the Creator Terms or the Publisher Terms (as applicable), Audioburst’s subcontractors and third party service providers will have the right to enforce these Terms, the Creator Terms and the Publisher Terms (as applicable) as related to the licenses granted herein against you as third party beneficiaries thereof.
Severability and Entire Agreement
- Audioburst shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond our reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation.
- These Terms, the Creator Terms and/or the Publisher Terms are personal to you, and are not assignable, transferable or sub-licensable by you except with our prior written consent. We may assign, transfer or delegate any of our rights and obligations hereunder.
- No agency, partnership, joint venture, or employment relationship is created as a result of these Terms, the Creator Terms and/or the Publisher Terms and neither party has any authority of any kind to bind the other in any respect.
- Our failure to enforce any part of these Terms, the Creator Terms and/or the Publisher Terms shall not constitute a waiver of our right to later enforce that or any other part of these Terms, the Creator Terms and/or the Publisher Terms. Waiver of compliance in any particular instance does not mean that we will waive compliance in the future. In order for any waiver of compliance to be binding, we must provide you with explicit written notice of such waiver through one of our authorized representatives.
- We value hearing from our Listeners and customers and welcome your feedback. You may contact us anytime at the following email address: firstname.lastname@example.org