Last Updated: March 17, 2022
These Terms of Service (these “Terms”) are entered into between you as an individual or, if you are accessing or using the Services or Programming (each as defined below) on behalf of another individual, organization, or entity (“Entity”), that Entity (in either case, “you” or “your”), and Auddia Inc. (“Auddia” “we,” “us,” or “our”). These Terms govern your access to and use of Auddia’s faidr and Vodacast software applications, as well as any other proprietary streaming and podcasting software applications that Auddia makes available for download via mobile phones, tablets and other consumer electronic or computer devices (collectively, the “Apps” and each an “App”), certain of its websites, and any other online properties owned or controlled by, or provided on behalf of, Auddia (the “Websites,” and together with the Apps, the “Services”).
PLEASE READ THESE TERMS CAREFULLY. BY COMPLETING THE REGISTRATION PROCESS OR USING OR ACCESSING THE SERVICES, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH AUDDIA, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THESE TERMS PERSONALLY OR ON BEHALF OF THE ENTITY. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICES.
PLEASE NOTE THAT THESE TERMS ARE SUBJECT TO CHANGE BY AUDDIA IN ITS SOLE DISCRETION AT ANY TIME. We will inform you of the presence of any changes to these Terms by posting an updated version of these Terms on the Apps and/or Websites, and/or by providing you with notice through the Apps, Websites, or other means (including by sending you notice to any email address provided to us). We will also update the “Last Updated” date at the top of these Terms. Unless otherwise stated, any modifications to these Terms are effective immediately upon posting on the Apps or Websites or upon delivery of such notice. You may terminate these Terms as set forth below if you object to any such modifications. However, you will be deemed to have agreed to any and all modifications through your continued use of the Services following such notice period. PLEASE REGULARLY CHECK THE APPS AND/OR WEBSITES TO VIEW THE THEN-CURRENT TERMS.
We also may require you to agree to additional terms that we make available to you from time to time in connection with your use of the Services (“Additional Terms”). All such Additional Terms are hereby incorporated into and made a part of these Terms.
THESE TERMS INCLUDE A CLASS ACTION WAIVER AND A WAIVER OF JURY TRIALS AND REQUIRE BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES. THESE TERMS LIMIT THE REMEDIES THAT MAY BE AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
1.1 Services. The Services may allow you to access a selection of radio stations, podcasts, and other content (including, without limitation, PDFs, videos, and/or other content accompanying podcasts) (“Programming”). Auddia makes no representations or commitments regarding the Programming that may or may not be available through the Services. Depending on whether you have a Subscription (as defined below) and the specific Programming you have selected, not all features may be available to you.
1.2 License. Subject to these Terms, you are hereby granted a limited, revocable, non-exclusive, non-transferable, non-assignable, worldwide license to access and use the Services in order to listen to, view, or otherwise consume Programming for your personal or internal business purposes. Any other use is expressly prohibited. This license is revocable at any time without notice and with or without cause. Auddia, its suppliers and service providers reserve all rights not granted in these Terms.
1.3 Certain Restrictions. The rights granted to you in these Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Services or any portion of the Services, including the Apps; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other content of Auddia (including audio content, images, text, page layout or form) of Auddia; (c) you shall not use any metatags or other “hidden text” using Auddia’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including, but not limited to, spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any pages contained in the Services; (f) you shall not access the Services in order to build a similar or competitive service, application, product, or other offering; (g) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Services. Any unauthorized use of the Services terminates the licenses granted by Auddia pursuant to these Terms.
1.4 Access. You must provide all equipment and software necessary to connect to the Services, including, but not limited to, a mobile device that is suitable to connect with and use the Apps, as applicable. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing and/or using the Services.
1.5 Changes to the Services. Auddia may at its sole discretion and from time to time change, add or remove Programming, features, functionality, and content available through the Services without any notice to you. Auddia may also terminate or discontinue support for any versions of the Apps, whether subject to a fee or a free trial. Auddia also reserves the right to discontinue some or all of the features of the Services at any time at its sole discretion (including the provision of software updates and support for different devices or platforms). You acknowledge and agree that Auddia will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Services or any Apps, or the removal of any Programming, features, functionality, or content (including Your Content, as defined below). If you are dissatisfied with any changes to the Services, then your sole option is to discontinue or terminate your use of the Services as described herein. You may need to update third-party software from time to time in order to use the Services. Any future release, update or other addition to the Services shall be subject to these Terms. Notwithstanding anything in these Terms to the contrary, if you have signed up for a Subscription and Auddia cancels your Subscription without cause, Auddia will refund you a pro-rated amount of the Subscription Fees.
2.1 Registering Your Account. In order to access the Services, you may be required to register for an account (“Account”) on one of the Websites or Apps and provide certain information about yourself as prompted by the account registration form.
2.2 Registration Data. In connection with your registration for an Account, you agree to (1) provide true, accurate, current, and complete information about yourself as prompted by the Services’ registration form (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current, and complete at all times during the term of these Terms. You represent and warrant that you are (i) at least eighteen (18+) years old, or thirteen (13) years or older and have your parent or legal guardian’s consent to these Terms; (ii) of legal age to form a binding contract; and (iii) not barred from using the Services under the laws of the United States, your place of residence or any other applicable jurisdiction. Children under the age of thirteen (13) are not allowed to create an Account or otherwise use the Services without their parent’s or legal guardian’s express consent, as specified herein. You are responsible for all activities that occur under your Account. You may not share your Account or password with anyone, and you agree to notify Auddia immediately of any actual or suspected unauthorized use of your password or any other breach of security. If you provide any information that is untrue, inaccurate, not current, or incomplete, or Auddia has reasonable grounds to suspect that such information is untrue, inaccurate, not current, or incomplete, Auddia has the right to suspend or terminate your Account and/or access to the Services (including Your Content) and refuse any and all current or future use of the Services (or any portion thereof). You shall not create an Account using a false identity or information, or on behalf of someone other than yourself. Auddia reserves the right to remove or reclaim any usernames at any time and for any reason, including, but not limited to, claims by a third party that a username violates the third party’s rights.
2.3 Eligibility. You may only access and use the Services if you are 13 years of age or older and meet the other eligibility requirements specified in these Terms. If you are 13 or older but younger than 18, then you may access the Services only if your parent or guardian accepts these Terms on your behalf. If you are a parent or guardian accepting these Terms for the benefit of your child aged 13 or older but under 18, you agree that you will be solely responsible for all access to and use of the Services by or on behalf of your child. If you are under 13, then you may not access or use the Services. By accessing and/or using the Services, and by agreeing to these Terms, you acknowledge that you meet each of these requirements. If you do not meet any of the requirements for the Services, you may not access or use the Services.
2.4 Linking Your Account with Google or Facebook. If the Services allow you to link your Account with your Google account and/or Facebook account: (a) by linking your Account with (i) your Google account, you are allowing Auddia to access your Google account information and you are agreeing to abide by the applicable Google terms and conditions in your use of the Services via your Google account; or (ii) your Facebook account, you are allowing Auddia to access your Facebook account information and you are agreeing to abide by the applicable Meta terms and conditions in your use of the Services via your Facebook account; and (b) you will have the option to disable the connection between your Account and your Google account and/or Facebook account, respectively, at any time by accessing your Google account and/or Facebook account, as applicable and disconnecting access to the Services from each such applicable account.
- Subscription Services and Free Trials.
3.1 Subscription Process. You may have the opportunity to purchase a subscription to the Services through the Websites or through the Apps via Google Play or the Apple App Store (“Subscription”). Where you purchase a Subscription through the Websites, your payments are processed by our third party payment processors. Where you purchase a Subscription through our iOS or Android Apps or through a third party’s consumer electronic devices, your payments are processed by Apple or Google, or the manufacturer of the consumer electronic device (or any of their third party payment processors), as applicable. We accept various forms of payment, as specified during purchase. All information that you provide to us or our third-party payment processor must be accurate, current, and complete. All fees exclude, and you shall be responsible for, all sales, use, excise, and other taxes applicable to the transactions contemplated by these Terms. All fees are non-refundable.
3.2 Trials. From time to time, Auddia may offer trials of Subscriptions for a specified period free-of-charge or at a reduced rate (“Trial”). The length of any Trial may vary. Auddia reserves the right, at our discretion, to determine your eligibility for a Trial, and, subject to applicable laws, to withdraw or to modify a Trial at any time without prior notice and with no liability, to the greatest extent permitted under the law. We will require you to provide your payment details at the start of the Trial. The first day following the end of your Trial or, if you are not eligible for a Trial, then the day you purchase your Subscription, is the first day of your billing cycle (“Billing Date”). You will be automatically charged for the applicable Subscription on the first day following the end of the Trial, on a recurring monthly or annual basis, unless you cancel the applicable Subscription before the end of the Trial as set forth in Section 3.7 below. FOR THE AVOIDANCE OF DOUBT, IF YOU DO NOT CANCEL YOUR TRIAL PRIOR TO THE START OF YOUR SUBSCRIPTION, YOU WILL BE CHARGED THE THEN-CURRENT SUBSCRIPTION FEE (AS DEFINED BELOW) THEREFOR, AS SPECIFIED AT THE OUTSET OF SUCH TRIAL (AND NOT THE REDUCED RATES, IF ANY, CORRESPONDING TO SUCH TRIAL) ON THE BILLING DATE. TO CANCEL YOUR SUBSCRIPTION, PLEASE FOLLOW THE INSRUCTIONS IN SECTION 3.7 BELOW.
3.3 Billing Authorization. BY PROVIDING YOUR PAYMENT METHOD AND OBTAINING A SUBSCRIPTION TO THE SERVICES, YOU AUTHORIZE AUDDIA, APPLE, OR GOOGLE (OR ANY OF THEIR SERVICE PROVIDERS), AS APPLICABLE, TO CHARGE YOUR DESIGNATED PAYMENT METHOD FOR THE APPLICABLE MONTHLY OR ANNUALLY RECURRING SUBSCRIPTION FEE (“SUBSCRIPTION FEE”), AND ANY APPLICABLE SALES, TELECOMMUNICATION, EXCISE, VALUE-ADDED, OR SIMILAR TAXES (“TAXES”). THE SUBSCRIPTION FEE IS EXCLUSIVE OF ANY SUCH TAXES. THE SUBSCRIPTION FEE IS PAYABLE IN U.S. DOLLARS.
3.4 Subscription Fee Changes. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, WE RESERVE THE RIGHT TO CHANGE THE SUBSCRIPTION FEE AT ANY TIME IN OUR SOLE DISCRETION. IF WE CHANGE THE SUBSCRIPTION FEE, THEN WE WILL PROVIDE YOU NOTICE OF THE PROPOSED CHANGE AT LEAST 30 DAYS BEFORE THE CHANGE IS TO TAKE EFFECT. SUBSCRIPTION FEE CHANGES WILL TAKE EFFECT AT THE START OF THE NEXT SUBSCRIPTION TERM FOLLOWING THE DATE OF THE PRICE CHANGE. YOU ACCEPT THE NEW SUBSCRIPTION FEE BY CONTINUING TO USE THE SERVICES AFTER THE SUBSCRIPTION FEE CHANGE TAKES EFFECT. IF YOU DO NOT ACCEPT THE SUBSCRIPTION FEE CHANGE, THEN YOU HAVE THE RIGHT TO REJECT THE CHANGE BY CANCELLING YOUR SUBSCRIPTION AS SET FORTH IN SECTION 3.7 BELOW, PRIOR TO THE PRICE CHANGE GOING INTO EFFECT.
3.5 Automatic Renewal. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, BY PURCHASING A SUBSCRIPTION, INCLUDING THOSE WITH A FREE OR DISCOUNTED TRIAL, TO THE SERVICES, YOU AGREE THAT ANY SUCH SUBSCRIPTION OF YOURS WILL CONTINUE FOR THE LENGTH OF YOUR SELECTED PAID SUBSCRIPTION (“SUBSCRIPTION TERM“) AND WILL AUTOMATICALLY RENEW FOR THE SAME SUBSCRIPTION PLAN (OR THE MOST SIMILAR SUBSCRIPTION PLAN, IF YOUR PRIOR PLAN IS NO LONGER AVAILABLE) AT THE END OF EACH SUBSCRIPTION TERM AT THE THEN-CURRENT SUBSCRIPTION FEE RATES IN EFFECT AT THE TIME OF EACH RENEWAL, PLUS ANY TAXES, AND FOR ADDITIONAL LIKE PERIODS (E.G., FOR THE SAME SUBSCRIPTION TERM AS THE IMMEDIATELY PRECEDING SUBSCRIPTION TERM), UNLESS AND UNTIL YOU CANCEL YOUR SUBSCRIPTION AS SET FORTH IN SECTION 3.7 BELOW; PROVIDED THAT IN NO EVENT SHALL ANY RENEWAL SUBSCRIPTION TERM EXCEED A PERIOD OF ONE (1) YEAR WITHOUT YOUR EXPRESS WRITTEN CONSENT.
3.6 Recurring Charges. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, UNLESS YOU CANCEL PRIOR TO THE RENEWAL OF YOUR SUBSCRIPTION TERM, FOR EACH SUCH RENEWAL SUBSCRIPTION TERM, YOUR APPLICABLE PAYMENT METHOD WILL AUTOMATICALLY BE CHARGED THE THEN-CURRENT SUBSCRIPTION FEE RATES IN EFFECT AT THE TIME OF SUCH RENEWAL, PLUS ANY TAXES, ON YOUR BILLING DATE, BASED ON THE TYPE OF SUBSCRIPTION (E.G., ON A PARTICULAR DATE EACH MONTH FOR A MONTHLY SUBSCRIPTION). IF, HOWEVER, THE BILLING DATE OF YOUR SUBSCRIPTION IS ON THE 29TH, 30TH, OR 31ST DAY OF A MONTH, AND YOUR BILLING DATE DOES NOT EXIST IN A PARTICULAR MONTH BECAUSE THERE ARE FEWER THAN 29, 30, OR 31 DAYS, AS APPLICABLE IN THE PARTICULAR MONTH THAT PAYMENT IS DUE, THEN YOUR BILLING DATE FOR THAT PARTICULAR RENEWAL WILL BE ON THE LAST DAY OF THE MONTH IN WHICH YOUR BILLING DATE WOULD OTHERWISE BE.
3.7 Cancellation. To cancel (a) the automatic renewal of your Subscription at any time, or (b) your Trial at any time prior to the expiration of such Trial, you must do so by logging into your Account through the Apps or the Websites, as applicable, and following the cancellation link therein prior to your next scheduled renewal date or the expiration of your Trial, as applicable to avoid being charged for the next renewal Subscription Term (whether for a renewal Subscription Term or an initial Subscription Term following a Trial, as applicable). If you cancel the automatic renewal of your Subscription, you may use your Subscription until the end of your then-current Subscription Term or Trial period, as applicable. Auddia may submit periodic charges (e.g., monthly) for your applicable Subscription Fee without further authorization from you, until you provide prior notice that you have terminated this authorization or wish to change your payment method. If you cancel the automatic renewal of your Subscription, you will not be eligible for a prorated refund of any portion of the Subscription Fee paid for the then-current Subscription Term or Trial period, as applicable. If Auddia does not receive payment for a renewal prior to the date of renewal, Auddia may, in its discretion, do one or more of the following: (i) demand full payment for the applicable auto-renewing renewal or initial-post-Trial Subscription Term on the Billing Date therefor, (ii) charge any form of payment you have obtained to replace your provided form of payment (e.g., you have obtained a replacement credit card number for a card that was an authorized payment method hereunder), and you hereby authorize Auddia to do so, or (iii) terminate or suspend your Subscription and/or corresponding access to the Services. Uninstalling the Apps does not cancel your Subscription.
4.1 Auddia Content. Except for Your Content and third party content owned or controlled by third party transmitting entities over whom Auddia does not have control (“Third Party Content”), the content that Auddia itself provides on or through the Services, including, without limitation, any Programming or other content (audio, visual, or otherwise), text, graphics, photos, software and interactive features, are protected by copyright or other intellectual property rights and are owned by Auddia or its third party licensors (collectively, the “Auddia Content”). You may not reproduce, modify, distribute, display, publish, transmit, communicate to the public, make available, broadcast, create derivative works from, publicly perform (including on a through-to-the audience basis), and otherwise use and exploit (collectively, “Use”) any Auddia Content without Auddia’s prior authorization. You may not Use any Third Party Content without the prior authorization of the owners of such content, notwithstanding any functionalities of the Services. Auddia does not guarantee access to any particular Auddia Content or Third Party Content. Auddia or its licensors, and the owners of Third Party Content, may change, delete, or prohibit access to Auddia Content or Third Party Content, as the case may be, or schedules of any of the foregoing, at any time with or without notice. Auddia is not the publisher of, nor responsible for, any Third Party Content, and to the fullest extent permitted by law, Auddia will have no liability to you with respect to Third Party Content you access via the Services. You may not remove or attempt to circumvent any copyright protection mechanisms in any Auddia Content or Third Party Content without express authorization of the owner of such content or their authorized agent, or as otherwise permitted by law, and any attempts to do so may subject you to liability.
4.2 Restrictions. The Services and Auddia Content, including all intellectual property rights therein, are the sole and exclusive property of Auddia and its licensors. You will not remove, alter, or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services. Auddia hereby reserves all rights not expressly granted to you in these Terms. Except for the right to access Third Party Content through the Services, no rights are hereby granted to you with respect to such Third Party Content.
4.3 License to Your Content. “Your Content” means any and all information, data, ideas, submissions, questions, reviews, comments, and other content (including, text, audio, video, photographs, illustrations, graphics, testimonials, and other media) that you make available in connection with your use of the Services, including any such content that you provide, upload, or transfer to the Services or generate through your Account (e.g., commenting on a podcast or sharing an audio or video message for your favorite podcast). You represent and warrant that you will comply with the Acceptable Use Policy (defined below) as to all of Your Content. You are solely responsible for all of Your Content that you may provide or generate through your use of or access to the Services. As between you and Auddia, you retain ownership of Your Content. However, by providing or generating Your Content through the Services, you grant Auddia a non-exclusive, royalty-free, perpetual, irrevocable, and fully sublicensable (including to other users and other third parties) right to use, copy, store, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display Your Content throughout the world in any form, medium, media, software, or technology of any kind. In addition, you waive all moral rights in Your Content or warrant that all moral rights applicable to Your Content have been waived. You also grant Auddia the right to use your name, or otherwise identify you, in connection with Your Content. You represent and warrant to Auddia that you have all right, title, interest, permission, and consent in Your Content necessary to allow Auddia and its service providers to use Your Content as set forth in these Terms and to grant Auddia each of the foregoing rights set forth in this Section.
4.4 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Auddia (“Feedback”) is at your own risk and that Auddia has no obligations (including, without limitation, obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Auddia a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Services.
- App Stores.
5.1 Usage Rules. With respect to the Services accessed through or downloaded from the Apple App Store or Google Play Store (each an “App Store” and references to the App Store include the corporate entity and its subsidiaries making the App Store available to you), you agree to comply with all applicable third-party terms of the App Store (the “Usage Rules”) when using any applicable App. To the extent these Terms provide for usage rules that are less restrictive than or otherwise in conflict with the Usage Rules, the more restrictive term applies. Furthermore, with respect to any App accessed through or downloaded from the Apple App Store (an “App Store-Sourced Application”), you will only use the App Store-Sourced Application (a) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (b) as permitted by the Usage Rules set forth in the Apple App Store Terms of Service.
5.2 Accessing and Downloading an App Store-Sourced Application. The following applies to any App Store-Sourced Application:
- You acknowledge and agree that (i) these Terms are concluded between you and Auddia only, and not Apple, and (ii) Auddia, not Apple, is solely responsible for the App Store-Sourced Application and content thereof. Your use of the App Store-Sourced Application must comply with the App Store Terms of Service.
- You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store-Sourced Application.
- In the event of any failure of the App Store-Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store-Sourced Application to you and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store-Sourced Application. As between Auddia and Apple, any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Auddia.
- You and Auddia acknowledge that, as between Auddia and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store-Sourced Application or your possession and use of the App Store-Sourced Application, including, but not limited to: (i) product liability claims, (ii) any claim that the App Store-Sourced Application fails to conform to any applicable legal or regulatory requirement, and (iii) claims arising under consumer protection or similar legislation.
- You and Auddia acknowledge that, in the event of any third-party claim that the App Store-Sourced Application or your possession and use of that App Store-Sourced Application infringes that third party’s intellectual property rights, as between Auddia and Apple, Auddia, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim to the extent required by these Terms.
- You and Auddia acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms as related to your license of the App Store-Sourced Application, and that, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App Store-Sourced Application against you as a third-party beneficiary thereof.
- Without limiting any other terms of these Terms, you must comply with all applicable third-party terms of agreement when using the App Store-Sourced Application.
- Acceptable Use.
6.1 Your Content. You are solely responsible for Your Content. You assume all risks associated with use of Your Content, including any reliance on its accuracy, completeness, or usefulness by other users, or any disclosure of Your Content that makes you or any third party personally identifiable. You hereby represent and warrant that Your Content does not violate the Acceptable Use Policy. Because you alone are responsible for Your Content (and not Auddia), you may expose yourself to liability if, for example, Your Content violates the Acceptable Use Policy. Auddia reserves the right (but has no obligation) to review any of Your Content, investigate, or take appropriate action against you in its sole discretion if you violate the Acceptable Use Policy or otherwise create liability for Auddia or any other person. Such acts may include removing or modifying Your Content, terminating your Account, or reporting you to law enforcement authorities. Auddia is not obligated to back up any of Your Content. Auddia may delete Your Content at any time, for any reason or no reason, without notice. If Your Content is not shown on or is deleted from the Services, you may contact Auddia as provided herein with evidence of Your Content’s compliance with applicable laws.
6.2 Acceptable Use Policy. The following terms constitute our “Acceptable Use Policy”:
- You agree not to use the Services to collect, upload, transmit, display, or distribute any content (including Your Content) (i) that infringes, violates, or misappropriates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, literary, right of publicity, or any other intellectual property, personal, property, or proprietary right; (ii) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable; (iii) that is harmful to minors in any way; or (iv) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party.
- In addition, you agree not to: (i) upload, transmit, or distribute to or through the Services any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) use the Services to harvest, collect, gather, or assemble information or data regarding other users, including email addresses, without their consent; (iii) interfere with, disrupt, or create an undue burden on servers or networks connected to the Services, or violate the regulations, policies, or procedures of such networks; (iv) attempt to gain unauthorized access to the Services (or to other computer systems or networks connected to or used together with the Services), whether through password mining or any other means; (v) harass or interfere with any other user’s use and enjoyment of the Services; (vi) use software or automated agents or scripts to produce multiple accounts on the Services, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Services; (vii) take any action that may undermine our feedback or ratings systems; (viii) transfer your Account and username to another party without our consent; or (ix) upload, post, e-mail, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation.
6.3 Copyright Infringement Claims. It is Auddia’s policy to terminate the Account of any user who repeatedly infringes copyright upon prompt notification to Auddia by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Services in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on the Services of the material that you claim is infringing; (d) your address, telephone number, and email address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Auddia’s Copyright Agent for notice of claims of copyright infringement is as follows: by email at: firstname.lastname@example.org, or by postal mail at: Auddia Inc., Attn: Legal, 2100 Central Avenue, Suite 200, Boulder, CO 80301.
- Investigations. Auddia may, but is not obligated to, monitor or review the Services at any time. Although Auddia does not generally monitor user activity occurring in connection with the Services, if Auddia becomes aware of any possible violations by you of any provision of these Terms, Auddia reserves the right to investigate such violations, and Auddia may, at its sole discretion, immediately terminate your license to use the Services, without prior notice to you.
- Third-Party Services. The Services use third-party SDKs (including, without limitation, those of Facebook and Google) and may display links to third-party websites and advertisements for third parties, including those for providers of Third Party Content (collectively, “Third-Party Websites and Ads”). Such Third-Party Websites and Ads are not under the control of Auddia. You agree Auddia is not responsible for any Third-Party Websites and Ads, or liable for any loss or damage incurred as a result of your interactions with or the presence of such Third Party Websites and Ads on the Services. Auddia does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites and Ads, or the products or services promoted therein. Your use of all links in Third-Party Websites and Ads is at your own risk. When you leave the Websites or Apps, our terms and policies (including, without limitation, these Terms) no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
- Indemnification. You agree to indemnify and hold Auddia, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “Auddia Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) your use of, or inability to use, the Services; (b) your violation of these Terms; (c) your violation of any rights of another party, including any other users; (d) your violation of any applicable laws, rules or regulations; or (e) Your Content. Auddia reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Auddia in asserting any available defenses. You agree that the provisions in this Section will survive any termination of your Account, these Terms, and/or your access to the Services.
- Disclaimer of Warranties. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES (AND ANY CONTENT (INCLUDING, WITHOUT LIMITATION, ANY AUDDIA CONTENT AND THIRD-PARTY CONTENT) AVAILABLE THROUGH THE SERVICES) IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. THE AUDDIA PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES AND REPRESENTATIONS REGARDING THE SERVICES AND ANY CONTENT AVAILABLE THROUGH THE SERVICES,, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. AUDDIA DOES NOT WARRANT THAT THE SERVICES OR CONTENT WILL BE TIMELY, ACCURATE, RELIABLE, OR UNINTERRUPTED. YOU AGREE THAT YOU USE THE SERVICES AND ANY CONTENT THEREON AT YOUR OWN RISK.
- Liability Limitation. THE AGGREGATE LIABILITY FOR ALL OF THE AUDDIA PARTIES, AND THE AGGREGATE LIABILITY OF OUR LICENSORS, SUPPLIERS AND PARTNERS, FOR ANY LOSS OR DAMAGES ARISING OUT OF OR RELATING TO THESE TERMS, THE APPS, THE WEBSITES, THE SERVICES, OR ANY CONTENT AVAILABLE THROUGH THE SERVICES, WILL NOT EXCEED $100 OR THE AMOUNT OF FEES PAID TO US BY YOU FOR THE SERVICES DURING THE SIX-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT(S) GIVING RISE TO LIABILITY HEREUNDER, WHICHEVER IS GREATER. IN NO EVENT WILL THE AUDDIA PARTIES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OR DAMAGE TO YOUR CONTENT OR DATA OR LOSS OF GOOD WILL, WHETHER OR NOT FORESEEABLE AND WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY OF THESE TERMS.
CERTAIN STATES AND/OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO YOU; PROVIDED, HOWEVER, THAT IN ANY CASE, THE EXCLUSIONS AND LIMITATIONS SET FORTH ABOVE SHALL APPLY TO YOU TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
The warranty disclaimer and limitation of liability set forth above are fundamental elements of the basis of the agreement between you and us. Auddia would not be able to provide the Services on an economic basis without such limitations. The warranty disclaimer and limitation of liability inure to the benefit of Auddia’s suppliers as well.
- Termination. These Terms are effective as of the date you accept them (as provided in the preamble) and will continue until terminated as provided herein. We may, with or without prior notice to you, immediately terminate these Terms and the license granted hereunder if you fail to comply with these Terms, if you breach any provision of these Terms, and/or if you violate the rights of any third party. Auddia also reserves the right to change, suspend, or discontinue all or any part of the Services at any time without prior notice or liability to you. Upon such termination, you must immediately stop using the Apps and destroy or delete all copies of the Apps. You may terminate these Terms and the license granted hereunder at any time by destroying or deleting all copies of the Apps, subject to Section 5. Sections 1.3, 4, 5, 6, and 9-13 will survive any termination or expiration of these Terms.
- General Provisions.
13.1 Assignment. These Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Auddia’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
13.2 Force Majeure. Auddia shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, pandemics or epidemics, accidents, strikes or shortages of transportation facilities, fuel, energy, labor, or materials.
13.3 Limitations Period. YOU AND AUDDIA AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THESE TERMS, THE APPS, OR THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
13.4 Dispute Resolution.
- Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with these Terms or the use of any product or service provided by Auddia that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under these Terms of this Arbitration Agreement. Unless otherwise agreed, all arbitration proceedings will be held in English. This Arbitration Agreement applies to you and Auddia, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under these Terms.
- Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to Auddia should be sent to: 2100 Central Avenue, Suite 200, Boulder, CO 80301. After the Notice is received, you and Auddia may attempt to resolve the claim or dispute informally. If you and Auddia do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
- Arbitration Rules. Arbitration shall be initiated through the Judicial Arbitration and Mediation Services, Inc. (“JAMS”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this Section. If JAMS is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including, but not limited to, the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with these Terms. The JAMS Streamlined Arbitration Rules governing the arbitration are available online at http://www.jamsadr.com/. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time, and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
- Additional Rules for Non-Appearance Based Arbitration. If non-appearance-based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
- Time Limits. If you or Auddia pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the JAMS Rules for the pertinent claim.
- Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and Auddia, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim (including any claim regarding the enforceability of this Arbitration Agreement or any unconscionability in connection with these Terms). The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the JAMS Rules, and these Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Auddia.
- Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and Auddia in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND AUDDIA WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
- Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
- Confidentiality. All aspects of the arbitration proceeding, including, but not limited to, the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Arbitration Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
- Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
- Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
- Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Auddia.
- Small Claims Court. Notwithstanding the foregoing, either you or Auddia may bring an individual action in small claims court.
- Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
- Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secrets shall not be subject to this Arbitration Agreement.
- Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Denver County, Colorado, for such purpose.
13.5 Governing Law. These Terms and any action related thereto will be governed and interpreted by and under the laws of the State of Colorado, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction.
13.6 Notice. Unless otherwise specified in these Terms, any notices required or allowed under these Terms will be provided in one of several ways: (1) by postal mail to the address for Auddia listed on the Services; (2) electronically by sending you an email to any email address you provide to Auddia in connection with your Account; or (3) in the case of any notice or communication applicable both to you and other users of the Services, Auddia may instead provide such notice or communication by posting it on the Services (e.g., on the Apps and/or Websites). You agree that all notices and other communications provided to you electronically satisfy any legal requirement that such communication be in writing. Your consent to receive communications electronically is valid until you revoke such consent by notifying Auddia of your decision to do so. If you revoke your consent to receive communications electronically, Auddia may terminate these Terms and your right to access or use your Account and the Services. Notices provided to Auddia will be deemed given when actually received by Auddia.
13.7 Waiver. Any waiver or failure to enforce any provision of these Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
13.8 Severability. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
13.9 Export Control. You may not use, export, import, or transfer the Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws. In particular, but without limitation, the Services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Services, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Services for any purpose prohibited by U.S. law, including the development, design, manufacture, or production of missiles, or nuclear, chemical, or biological weapons. You acknowledge and agree that products, services, or technology provided by Auddia are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Auddia products, services, or technology, either directly or indirectly, to any country in violation of such laws and regulations.
13.10 Entire Agreement. These Terms are the final, complete, and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.