These Termsof Service, together with the online setup form (“Setup Form”) which isincorporated herein by reference (collectively, the “Agreement”), is abinding agreement by and between Audiohook Corp, a Delaware corporation (“Audiohook”), and the party set forth on the Setup Form (“you” or “Customer”)and is effective as of the date that Customer submits the Setup Form (the “EffectiveDate”). Audiohook and Customer may be referred to herein collectively asthe “Parties” or individually as a “Party.”
This Agreement states the terms and conditions under which Customer may use the Audiohooksoftware-as-a-service platform, as described in more detail at [URL] (the “Services”).If you do not accept this Agreement, you may not use the Services.
BY CHECKINGTHE BOX ON THE SETUP FORM YOU (A) ACCEPT THESE TERMS OF SERVICE AND AGREE THAT CUSTOMERIS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE18 YEARS OF AGE OR OLDER; AND (II) IF CUSTOMER IS A CORPORATION, GOVERNMENTALORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITYTO ENTER INTO THIS AGREEMENT ON BEHALF OF CUSTOMER AND BIND CUSTOMER TO ITSTERMS.
1.1. Subject to the terms of this Agreement, Audiohook willuse commercially reasonable efforts to provide Customer the Services. As partof the registration process, Customer will identify an administrative usernameand password for Customer’s Audiohook account. Audiohook reserves the right torefuse registration of, or cancel passwords it deems inappropriate.
1.2. Subject to the terms hereof, Audiohook will provideCustomer with support services in accordance with Audiohook’s standardpractice.
2.1. Customer will not, directly or indirectly: reverseengineer, decompile, disassemble or otherwise attempt to discover the sourcecode, object code or underlying structure, ideas, know-how or algorithmsrelevant to the Services or any software, documentation or data related to theServices (“Software”); modify, translate, or create derivative worksbased on the Services or any Software (except to the extent expressly permittedby Audiohook or authorized within the Services); use the Services or anySoftware for timesharing or service bureau purposes or otherwise for thebenefit of a third; or remove any proprietary notices or labels. With respectto any Software that is distributed or provided to Customer for use on Customerpremises or devices, Audiohook hereby grants Customer a non-exclusive,non-transferable, non-sublicensable license to use such Software during theTerm only in connection with the Services.
2.2. Customer may not remove or export from the UnitedStates or allow the export or re-export of the Services, Software or anythingrelated thereto, or any direct product thereof in violation of anyrestrictions, laws or regulations of the United States Department of Commerce,the United States Department of Treasury Office of Foreign Assets Control, orany other United States or foreign agency or authority. As defined in FARsection 2.101, the Software and documentation are “commercial items” andaccording to DFAR section 252.227‑7014(a)(1) and (5) are deemed to be“commercial computer software” and “commercial computer softwaredocumentation.” Consistent with DFAR section 227.7202 and FAR section 12.212,any use modification, reproduction, release, performance, display, ordisclosure of such commercial software or commercial software documentation bythe U.S. Government will be governed solely by the terms of this Agreement andwill be prohibited except to the extent expressly permitted by the terms ofthis Agreement.
2.4. Customer shall be responsible for obtaining andmaintaining any equipment and ancillary services needed to connect to, accessor otherwise use the Services, including, without limitation, modems, hardware,servers, software, operating systems, networking, web servers and the like(collectively, “Equipment”). Customer shall also be responsible formaintaining the security of the Equipment, Customer account, passwords(including but not limited to administrative and user passwords) and files, andfor all uses of Customer account or the Equipment with or without Customer’sknowledge or consent.
3.1. Customer may use the Services to purchase onlineadvertising on third party platforms by delivering an insertion order toAudiohook via the digital form provided by Audiohook (an “Insertion Order”).Each Insertion Order must include a digital file with Customer’s advertisement(the “Advertisement”) and all other information requested by Audiohook. Allonline advertising purchases via an Insertion Order shall be subject to thethen-current Standard Terms and Conditions for Internet Advertising for MediaBuys One Year or Less (“IAB Terms”) as published by the InteractiveAdvertising Bureau (“IAB”), and which may be amended from time to time,and subject to any amendments provided to Customer by Audiohook in writing. Thecurrent IAB Terms are available at https://www.iab.com/wp-content/uploads/2015/06/IAB_4As-tsandcs-FINAL.pdf.
3.2. All multimedia content (“Content”) in any Advertisementmust in its entirety comply with all applicable federal, state, local, andinternational laws and regulations. Without limiting the foregoing, Advertisementsmust not:
Uponsubmitting an Insertion Order, Customer grants Audiohook and its serviceproviders, and each of their respective licensees, successors, and assigns theright to use, reproduce, modify, perform, display, distribute, and otherwisedisclose to third parties the applicable Advertisement(s) to provide the Services.
Customerrepresents and warrant that it owns or control all rights in and to the Advertisementsand has the right to grant the license granted above Audiohook and its serviceproviders, and each of their respective licensees, successors, and assigns.
CUSTOMERSHALL BE RESPONSIBLE FOR ALL ADVERTISEMENTS IT SUBMITS THROUGH THE SERVICES. AUDIOHOOKIS NOT RESPONSIBLE OR LIABLE TO ANY THIRD PARTY FOR THE CONTENT OR ACCURACY OFANY ADVERTISEMENTS SUBMITTED BY CUSTOMER. AUDIOHOOK MAY, BUT DOES NOT HAVE ANYOBLIGATION TO, REVIEW ADVERTISEMNTS SUBMITTED BY CUSTOMER.
4.1. Each Party (the “Receiving Party”) understandsthat the other Party (the “Disclosing Party”) has disclosed or maydisclose business, technical or financial information relating to theDisclosing Party’s business (hereinafter referred to as “ProprietaryInformation” of the Disclosing Party). Proprietary Information of Audiohookincludes non-public information regarding features, functionality andperformance of the Service. Proprietary Information of Customer includesnon-public data provided by Customer to Audiohook to enable the provision ofthe Services (“Customer Data”). The Receiving Party agrees: (i) totake reasonable precautions to protect such Proprietary Information, and(ii) not to use (except in performance of the Services or as otherwisepermitted herein) or divulge to any third person any such ProprietaryInformation. The Disclosing Party agrees that the foregoing shall not applywith respect to any information after five (5) years following the disclosurethereof or any information that the Receiving Party can document (a) is orbecomes generally available to the public, or (b) was in its possession orknown by it prior to receipt from the Disclosing Party, or (c) wasrightfully disclosed to it without restriction by a third party, or(d) was independently developed without use of any Proprietary Informationof the Disclosing Party or (e) is required to be disclosed by law.
4.2. Customer shall own all right, title and interest in andto the Customer Data. Audiohook shall own and retain all right, title andinterest in and to (a) the Services and Software, all improvements,enhancements or modifications thereto, (b) any software, applications,inventions or other technology developed in connection with ImplementationServices or support, and (c) all intellectual property rights related to any ofthe foregoing.
4.3. Notwithstanding anything to the contrary, Audiohookshall have the right collect and analyze data and other information relating tothe provision, use and performance of various aspects of the Services andrelated systems and technologies (including, without limitation, informationconcerning Customer Data and data derived therefrom), and Audiohook will befree (during and after the term hereof) to (i) use such information and data toimprove and enhance the Services and for other development, diagnostic andcorrective purposes in connection with the Services and other Audiohookofferings, and (ii) disclose such data solely in aggregate or otherde-identified form in connection with its business. No rights or licenses aregranted except as expressly set forth herein.
5.1. Customer will pay Audiohook the then applicablesubscription fee set forthat [URL] for the Services (the “Subscription Fee”).
5.2. [Descriptionor schedule of advertising fees] (the “Advertising Fees,” andtogether with the Subscription Fee, the “Fees”).
5.3. Audiohook reserves the right to change the Fees orapplicable charges and to institute new charges and Fees at any time upon sixty(60) days’ prior notice to Customer (which may be sent by email). If Customerbelieves that Audiohook has billed Customer incorrectly, Customer may contact Audiohook’scustomer support department.
5.4. Subscription Fees shall be payable in advance.Audiohook may choose to bill Advertising Fees through an invoice, in whichcase, full payment for invoices issued in any given month must be received by Audiohookthirty (30) days after the mailing date of the invoice.
5.5. Unpaid amounts are subject to a finance charge of 1.5%per month on any outstanding balance, or the maximum permitted by law,whichever is lower, plus all expenses of collection and may result in immediatetermination of Service. Customer shall be responsible for all taxes associatedwith Services other than U.S. taxes based on Audiohook’s net income.
6.1. This Agreement shall be effective upon the earlier ofthe date Customer submits the Setup Form or first accesses or uses the Services,and shall continue until terminated by either Party pursuant to Section 6.2 orSection 6.3 (the “Term”).
6.2. Customer may terminates this Agreement at any time andfor any reason upon written notice to Audiohook.
6.3. Audiohook mayterminates this Agreement at any time and for any reason upon thirty (30) days’prior notice to Customer (which may be sent by email). In addition to any otherremedies it may have, Audiohook may also terminate this Agreement immediately uponnotice (or without notice in the case of nonpayment), if Customer (a)materially breaches any of the terms or conditions of this Agreement; (b)becomes insolvent or is generally unable to pay, or fails to pay, its debts asthey become due; (c) files or has filed against it, a petition for voluntary orinvoluntary bankruptcy or otherwise becomes subject, voluntarily orinvoluntarily, to any proceeding under any domestic or foreign bankruptcy orinsolvency law; (d) makes or seeks to make a general assignment for the benefitof its creditors; or (e) applies for or has appointed a receiver, trustee,custodian, or similar agent appointed by order of any court of competentjurisdiction to take charge of or sell any material portion of its property orbusiness.
6.4. Customer will pay in full for the Services up to andincluding the last day on which the Services are provided. All sections of thisAgreement which by their nature should survive termination will survivetermination, including, without limitation, accrued rights to payment,confidentiality obligations, warranty disclaimers, and limitations ofliability. Except as set forth in Section 7.2, Audiohook will not provide anyrefunds upon termination of this Agreement.
7.1. Audiohook shalluse reasonable efforts consistent with prevailing industry standards tomaintain the Services in a manner which minimizes errors and interruptions inthe Services and shall perform the Implementation Services in a professionaland workmanlike manner. Services may be temporarily unavailable for scheduledmaintenance or for unscheduled emergency maintenance, either by Audiohook or bythird-party providers, or because of other causes beyond Audiohook’s reasonablecontrol, but Audiohook shall use reasonable efforts to provide advance noticein writing or by e-mail of any scheduled service disruption. However, Audiohook does not warrant that theServices will be uninterrupted or error free; nor does it make any warranty asto the results that may be obtained from use of the Services. EXCEPTAS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATIONSERVICES ARE PROVIDED “AS IS” AND AUDIOHOOK DISCLAIMS ALL WARRANTIES, EXPRESSOR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OFMERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
7.2. If the Services are held by a court of competentjurisdiction to be or are believed by Audiohook to be infringing any patent,trademark, trade secret, copyright, or other intellectual property or otherrights of a third party, Audiohook may, at its option and expense (a) replaceor modify the Service to be non-infringing provided that such modification orreplacement contains substantially similar features and functionality, (b)obtain for Customer a license to continue using the Service, or (c) if Audiohookdetermines in its sole discretion that neither of the foregoing is commerciallypracticable, terminate this Agreement and Customer’s rights hereunder andprovide Customer a refund of any prepaid, unused fees for the Service.
NOTWITHSTANDINGANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, AUDIOHOOK ANDITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGYSUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEESSHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THISAGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT,NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR ORINTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OFPROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS;(B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIALDAMAGES; (C) FOR ANY MATTER BEYOND AUDIOHOOK’S REASONABLE CONTROL; OR (D)FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS,EXCEED THE FEES PAID BY CUSTOMER TO AUDIOHOOK FOR THE SERVICES UNDER THISAGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, INEACH CASE, WHETHER OR NOT AUDIOHOOK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCHDAMAGES.
If any provision of this Agreement is found to beunenforceable or invalid, that provision will be limited or eliminated to theminimum extent necessary so that this Agreement will otherwise remain in fullforce and effect and enforceable. This Agreement is not assignable,transferable or sublicensable by Customer except with Audiohook’s prior writtenconsent. Audiohook may transfer and assign any of its rights and obligationsunder this Agreement without consent. This Agreement is the complete andexclusive statement of the mutual understanding of the Parties and supersedesand cancels all previous written and oral agreements, communications and otherunderstandings relating to the subject matter of this Agreement, and that allwaivers and modifications must be in a writing signed by both Parties, exceptas otherwise provided herein. No agency, partnership, joint venture, oremployment is created as a result of this Agreement and Customer does not haveany authority of any kind to bind Audiohook in any respect whatsoever. In anyaction or proceeding to enforce rights under this Agreement, the prevailing Partywill be entitled to recover costs and attorneys’ fees. All notices under thisAgreement will be in writing and will be deemed to have been duly given whenreceived, if personally delivered; when receipt is electronically confirmed, iftransmitted by facsimile or e-mail; the day after it is sent, if sent for nextday delivery by recognized overnight delivery service; and upon receipt, ifsent by certified or registered mail, return receipt requested. This Agreementshall be governed by the laws of the State of Utah without regard to itsconflict of laws provisions.