By using the Service, a person becomes a Customer and is deemed to accept this Agreement and the following Terms and Conditions.
THIS AGREEMENT AND THE ATTACHED TERMS AND CONDITIONS CONSTITUTE A LEGAL AGREEMENT BETWEEN THE PERSON, COMPANY, OR ORGANIZATION THAT HAS ELECTED TO USE THE SERVICE (“CUSTOMER”) AND AIBLE INC. (“AIBLE”). BY USING THE SERVICE, CUSTOMER ACCEPTS THE TERMS OF THIS AGREEMENT AND THE TERMS AND CONDITIONS. READ IT CAREFULLY BEFORE USING THE SERVICE. BY USING THE SERVICE, YOU ARE AGREEING TO BECOME BOUND BY THE TERMS OF THIS AGREEMENT AND THE TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, OR DO NOT HAVE AUTHORITY TO BIND CUSTOMER TO THESE TERMS, THEN DO NOT USE THE SERVICE.
TERMS AND CONDITIONS
- SERVICES AND SUPPORT
1.1 Subject to the terms and conditions of this Agreement, Aible will provide Customer with access to the Services through the internet. The Services are subject to modification from time to time at Aible’s sole discretion, for any purpose deemed appropriate by Aible. Aible will use reasonable efforts to give Customer prior written notice of any such modification.
1.2 Aible will undertake commercially reasonable efforts to make the Services available twenty-four (24) hours a day, seven (7) days a week. Notwithstanding the foregoing, Aible reserves the right to suspend Customer’s access to the Services: (i) for scheduled or emergency maintenance, or (ii) in the event Customer is in breach of this Agreement, including failure to pay any amounts due to Aible.
1.3 Subject to the terms hereof, Aible will provide reasonable support to Customer for the Services from Monday through Friday during Aible’s normal business hours, 8:00 am to 6:00 pm Pacific Time.
- RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer will not, and will not permit any third party to: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to the Services (“Software”) (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); modify, translate, or create derivative works based on the Services or Software; use the Services or Software for timesharing or service bureau purposes or for any purpose other than its own use; or use the Services or Software other than in accordance with this Agreement and in compliance with all applicable laws and regulations (including but not limited to any European privacy laws, intellectual property, consumer and child protection, obscenity or defamation).
2.2 Customer will cooperate with Aible in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as Aible may reasonably request. Customer will also cooperate with Aible in establishing a password or other procedures for verifying that only designated employees of Customer have access to any administrative functions of the Services.
2.3 Customer hereby agrees to indemnify and hold harmless Aible against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Aible has no obligation to monitor the content provided by Customer or Customer’s use of the Services, Aible may do so and may remove any such content or prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
2.4 Customer will be responsible for maintaining the security of Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account with or without Customer’s knowledge or consent.
2.6 Customer acknowledges and agrees that the Services operates on or with or using application programming interfaces (APIs) and/or other services operated or provided by third parties, such as AWS, (“Third Party Services”) Aible is not responsible for the operation of any Third Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third Party Services. Customer is solely responsible for procuring any and all rights necessary for it to access Third Party Services and for complying with any applicable terms or conditions thereof. Aible does not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider and is governed by such third party’s terms and conditions.
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).
3.2 The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (i) to give access to such Proprietary information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. In any event, Aible may collect data with respect to and report on the aggregate response rate and other aggregate measures of the Services’ performance (including as specified in Section 4.4 below).
3.3 Customer acknowledges that Aible does not wish to receive, and shall not require access to any Proprietary Information from Customer that is not necessary for Aible to perform its obligations under this Agreement, and, unless the parties specifically agree otherwise, Aible may reasonably presume that any unrelated information received from Customer is not confidential or Proprietary Information.
3.4 Both Parties will have the right to disclose the existence but not the terms and conditions of this Agreement, unless such disclosure is approved in writing by both Parties prior to such disclosure, or is included in a filing required to be made by a Party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors, acquirors, or analysts.
- INTELLECTUAL PROPERTY RIGHTS
4.1 Except as expressly set forth herein, Aible alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Service or the Software or any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any third party relating to the Service and/or the Software, which are hereby assigned to Aible. Customer will not copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Agreement. Customer is hereby granted a non-exclusive, nontransferable, revocable right to use the Resulting Data for its internal use only. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Service or Software, or any intellectual property rights.
4.2 Customer is not required to provide any suggestions, ideas, enhancement requests, recommendations or other feedback (“Feedback”) related to the Services or any test features, services or products to which Customer is given access. If Customer does so, Customer hereby relinquishes and disclaims any and all rights, interest and title in and to any Feedback, and understands and agrees that Aible may use and/or incorporate into its Services any Feedback free of any obligation to Customer.
4.3 Aible may obtain and process certain content/data provided by or on behalf of Customer (“Content”) only to perform its obligations under this Agreement. Customer and its licensors shall (and Customer hereby represents and warrants that they do) have and retain all right, title and interest (including, without limitation, sole ownership of) all Content distributed through the Services and the intellectual property rights with respect to that Content. If Aible receives any notice or claim that any Content, or activities hereunder with respect to any Content, may infringe or violate rights of a third party (a “Claim”), Aible may (but is not required to) suspend activity hereunder with respect to that Content and Customer will indemnify Aible from all liability, damages, settlements, attorney fees and other costs and expenses in connection with any such Claim, as incurred.
4.4 Aible may use meta-data collected in connection with Customer’s use of the Service, in anonymized non-aggregated form, solely for its internal business purposes, including for purposes of optimizing Aible’s products and services and may disclose such meta-data for external purposes, including as statistics in marketing its products and services. “Anonymized” means data that cannot be used to directly or indirectly identify Customer or Customer’s users of Aible’s products or services.
- PAYMENT OF FEES
The Service is currently offered to Customer without charge. In the future, Aible may elect to charge for its services, including the Service. Aible will provide Customer with six (6) months advance notice of its election to charge for any services currently offered without charge.
6.1 Subject to earlier termination as provided below, this Agreement is for the Service Term as specified in the Agreement.
6.2 In the event of any material breach of this Agreement, the non-breaching party may terminate this Agreement prior to the end of the Service Term by giving thirty (30) days prior written notice to the breaching party; provided, however, that this Agreement will not terminate if the breaching party has cured the breach prior to the expiration of such thirty-day period. Either party may terminate this Agreement, without notice, (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings, (ii) upon the other party’s making an assignment for the benefit of creditors, or (iii) upon the other party’s dissolution or ceasing to do business.
6.3 All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, restrictions, accrued rights to payment, confidentiality obligations, intellectual property rights, warranty disclaimers, and limitations of liability.
- WARRANTY DISCLAIMER
THE SERVICES AND AIBLE PROPRIETARY INFORMATION AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED “AS-IS,” WITHOUT ANY WARRANTIES OF ANY KIND. AIBLE (AND ITS AGENTS, AFFILIATES, LICENSORS AND SUPPLIERS) HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
- LIMITATION OF LIABILITY
IN NO EVENT WILL AIBLE (OR ANY OF ITS AGENTS, AFFILIATES, LICENSORS OR SUPPLIERS) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF AIBLE HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE TOTAL LIABILITY OF AIBLE, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE LESSER OF (i) FIVE HUNDRED DOLLARS, OR (ii) THE FEES PAID TO AIBLE HEREUNDER IN THE THREE MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
Miscellaneous Provisions. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Aible’s prior written consent. Aible may transfer and assign any of its rights and obligations under this Agreement with written notice to Customer. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Aible in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. Aible will not be liable for any loss resulting from a cause over which it does not have direct control. This Agreement will be governed by the laws of the State of California, U.S.A. without regard to its conflict of laws provisions. The federal and state courts sitting in Santa Clara County, California, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement, provided that either party may seek injunctive relief in any court of competent jurisdiction.
- EARLY ADOPTION PROGRAMS
In the event that Customer elects to participate in any early adoption program offered by Aible (each such program, an “Early Adoption Program”), the following additional terms shall apply to the Early Adoption Program:
- In connection with the Early Adoption Program, Customer may elect to upload certain Content to Aible for processing. Customer hereby agrees not to provide to Aible any Proprietary Information or any personally identifiable information (PII) in connection with the Early Adoption Program.
- Customer hereby agrees that “Proprietary Information” shall include the services offered under the Early Adoption Program including any functionality, documentation or materials related to the Early Adoption Program.
- Customer shall allow Aible and representatives of potential customers of Aible, reasonable access to Customer’s personnel for the purposes of (i) evaluating and correcting any problems relating to the Early Adoption Program, or (ii) assisting potential customers of Aible in evaluating potential deployments of Aible’s products and services (including the Early Adoption Program). In addition, Customer shall allow Aible to identify Customer’s participation in the Early Adoption Program in connection with non-public presentations, case studies and meetings with investors, potential customers, analysts and the like.
- No public disclosure of Customer’s participation in the Early Adoption Program can be made by Aible without written approval by the Customer.