By clicking on the box provided on the associated web page, you agree that you have read the following terms and conditions and that you agree to abide by them. Hereinafter in this agreement, you are referred to as the “Licensee.”
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DEFINITIONS
1.1 “LICENSOR Web sites” means the URLs described in Appendix A of this Agreement, or such other URL as LICENSOR may designate from time to time as the website where either the API or the LICENSOR Applications may be accessed.
1.2 “LICENSOR Applications” means LICENSOR’s software applications and any other online products or services provided by LICENSOR to its users via the LICENSOR Web sites or other means, including any and all data available through such applications and services.
1.3 “API” means the Application Programming Interface language that allows other software or hardware devices to interface with LICENSOR Applications as described in Appendix A, which LICENSOR will make available to the Licensee subject to the terms and conditions of this Agreement. The API also includes any accompanying documentation and any new revisions or updates to the API made available by LICENSOR at its sole discretion from time to time.
1.4 “Licensee Application” means any software application that is developed by Licensee that permits a third-party to send and receive data between the LICENSOR Applications and third-party devices as listed in Appendix A, in order to access the online services available through the LICENSOR Web Sites.
1.5 “Intellectual Property Rights” means any and all rights existing under patent law, copyright law, semiconductor chip protection law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide.
1.6 “LICENSOR Terms and Conditions of Use” means the Terms and Conditions of Use related to any of the associated LICENSOR Web Sites as listed in Appendix A, or such other URL as LICENSOR may designate from time to time as the website where either the API or the LICENSOR Applications may be accessed.
1.7 “LICENSOR Privacy Policy” means the Privacy Policy related to any of the associated LICENSOR Web Sites, including those listed in Appendix A, or such other URLs as LICENSOR may designate from time to time as the website where either the API or the LICENSOR Applications may be accessed.
1.8 “LICENSOR Users” means any user of the associated LICENSOR Web Sites, including those listed in Appendix A, or such other URL as LICENSOR may designate from time to time as the website where either the API or the LICENSOR Applications may be accessed.
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LICENSE TO ACCESS THE API
2.1 Access to the API. Subject to the terms and conditions outlined in this Agreement, LICENSOR hereby grants the Licensee a non-exclusive, non-sublicensable, limited license (“License”) during the term of this Agreement to access the API via the LICENSOR’s Websites, to develop the Licensee Application, and to distribute the Licensee Application to end-users directly or through sub-distributors. LICENSOR may terminate the License at any time for any reason. Moreover, the License will terminate automatically if (i) the Licensee violates any term of this Agreement or (ii) LICENSOR sends a written notice of termination to Licensee, or (iii) LICENSOR otherwise ceases providing access to the API to Licensee.
2.2 Branding and attribution. The Licensee Application must comply with the LICENSOR API Branding Guidelines outlined in Appendix A to this Agreement. LICENSOR reserves the right to revise and or supplement the Branding Guidelines in Appendix A at any time and will forthwith provide Licensee with any revised or supplement Appendix A at any time and will forthwith provide Licensee with any revised or supplemented Appendix A. LICENSOR’s Branding Guidelines include, but are not limited to the following requirements.
(a) Licensee shall not use Rawvoice or Blubrry in the hostname of Licensee Application except in a manner previously approved by LICENSOR.
(b) Licensee shall place the following notice prominently on the Licensee Application: “This product uses the Blubrry API but is not endorsed or certified by Blubrry.
(c) Licensee may not use the LICENSOR logo or any of the logos associated with the LICENSOR Web sites without specific written permission from the LICENSOR.
(d) Any use of the LICENSOR logo or any of the logos associated with the LICENSOR Web sites in the Licensee Application shall be less prominent than the logo or mark that primarily describes the Licensee Application and Licensee’s use of any of those logos shall not imply and endorsement by LICENSOR or the LICENSOR Web sites.
2.3 Electronic Key Updates. LICENSOR will issue Licensee a unique electronic key to access the API. The Licensee will hold the electronic key in confidence in accordance with the Mutual Confidentiality and Nondisclosure Agreement previously executed between the parties and will not assign, transfer, or disclose such electronic key to any third party. The Licensee will be required to use the electronic key to access the API and any updates or subsequent versions of the API that LICENSOR may release from time to time in its sole discretion. LICENSOR may require Licensee to alter all Licensee Applications developed or distributed under this Agreement to use the most current version of the API. LICENSOR will have the right to review and approve the Licensee Application, including any updates or modified versions, and Licensee will provide LICENSOR with access to review, test, and approve the Licensee Application upon request by LICENSOR at any time during the term of this Agreement.
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RESTRICTIONS
The Licensee has no rights with respect to the API or any portion thereof and will not use the API or any portion thereof except as expressly permitted in Section 2 and Appendix A.
Without limiting the generality of the foregoing, Licensee will not, and will require that all recipients of the Licensee Application do not
(i) modify or create derivative works of the API;
(ii) sublicense, lease, rent, assign, distribute, repackage, rebrand, or otherwise transfer or disclose the API or any portion thereof to any third party except as expressly permitted in this Agreement and Appendix A;
(iii) use the API in connection with any product or software other than the Licensee Application or beyond the defined scope of use for the Licensee Application;
(iv) distribute the API as a stand-alone product;
(v) reverse-assemble the API without the prior written consent of LICENSOR;
(vi) access, reverse engineer, or make available to any third party any interface or functionality of LICENSOR’s Applications, servers, or services not expressly included in the API, or otherwise documented by LICENSOR for public use;
(vii) use the API in connection with or to promote any products, services, or materials that constitute, promote, or are used primarily for the purpose of dealing in spyware, adware, or other malicious programs or code, counterfeit goods, items subject to U.S. embargo, hate materials or materials urging acts of terrorism or violence, goods made from protected animal/plant species, recalled goods, hacking/surveillance/interception/descrambling equipment, cigarettes, illegal drugs and paraphernalia, unlicensed sale of prescription drugs and medical devices, pornography, prostitution, body parts, and bodily fluids, stolen products and times used for theft, fireworks, explosives, and hazardous materials, government IDs, police items, unlicensed trade or dealing in stocks and securities, gambling items, professional services regulated by state licensing regimes, non-transferable items such as airline tickets or event tickets, non-packaged food items, weapons, and accessories;
(viii) use the API in any manner or for any purpose that violates any law or regulation, any right of any person, including but not limited to intellectual Property Rights, rights of privacy, or rights of personality, or in any manner inconsistent with the Terms and Conditions of Use, Privacy Policy, or Guidelines associated with the LICENSOR Web sites, or this Agreement;
(ix) use the API to operate nuclear facilities, life support, or other mission-critical application where human life or property may be at stake;
(x) sell, lease, share, transfer, or sublicense the API or access or access codes thereto or drive income from the use or provision of the API, whether for direct commercial or monetary gain or otherwise, without LICENSOR’s prior, express, written permission;
(xi) use the API in a manner that exceeds reasonable request volume, constitutes excessive or abusive usage, or otherwise fails to comply or is inconsistent with any part of the API documentation provided to you in connection with this Agreement;
(xii) use the API in a product or service that competes with products or services offered by LICENSOR;
(xiii) maintain a cache or store using any kind of storage of any set or subset of data accessed using the API;
(xiv) cause, assist or permit any third party to do any of the foregoing.
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OWNERSHIP
As between LICENSOR and Licensee, LICENSOR owns all rights, title, and interests, including without limitation all Intellectual Property Rights, in and to the LICENSOR Applications, the API, and any derivative works of the foregoing (“LICENSOR IP”). The Licensee will not acquire any right, title, or interest in or to the LICENSOR IP, except the limited rights granted in this Agreement. To the extent that Licensee should acquire any rights in the LICENSOR IP, Licensee hereby assigns to LICENSOR any such Intellectual Property Rights that it may have in the LICENSOR IP. The Licensee will execute and deliver to LICENSOR and will cause its personnel to do the same, such documents as LICENSOR may request to evidence, record and obtain the Intellectual Property Rights related to the foregoing (for example, applying for a patent, copyright, or trademark protection), or to enforce or effectuate any of LICENSOR’s rights related to the foregoing.
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TRADEMARKS
5.1 Trademark License. Subject to the terms and conditions of this Agreement, LICENSOR hereby grants to Licensee a non-exclusive, non-transferable, revocable license, without the right to sublicense, to use, display, and reproduce the trademarks, service marks, or trade names owned by LICENSOR as set forth in Appendix B to this Agreement, as this appendix is amended by LICENSOR from time to time during the Term (“LICENSOR Trademarks”), solely in connection with marketing, advertising, promotion, and distribution of that Licensee Application that fully and properly implements the API during the term of this Agreement. Licensee’s use will be in accordance with LICENSOR’s guidelines and policies regarding advertising and trademark usage as established from time to time (“Trademark Guidelines”). All rights of Licensee in and to such LICENSOR Trademarks not expressly granted under this Section 5.1 are reserved by LICENSOR. All use of the LICENSOR Trademarks, and goodwill arising out of such use, will inure to the sole benefit of LICENSOR. From time to time and upon LICENSOR’s request, Licensee will promptly submit to LICENSOR samples of all materials, packaging, other materials, or links to websites where the Licensee is displaying the LICENSOR’s trademarks. In the event of any improper use of the LICENSOR Trademarks or in the event that the Licensee Application fails, in LICENSOR’s sole and exclusive discretion, to meet LICENSOR’s quality standards, LICENSOR will have the right to deliver written notice describing the improper use to Licensee; Licensee will immediately remedy such improper use. If Licensee fails to remedy such improper use within ten (10) days following its receipt of such written notice, LICENSOR will have the right to terminate the trademark license contained in this Section 5.1 and this Agreement by providing written notice of such termination to the Licensee.
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SUPPORT
LICENSOR may elect to provide Licensee with support or modifications for the API (collectively “Support”), in its sole discretion, and may terminate such support at any time without notice to Licensee. LICENSOR may change, suspend, or discontinue any aspect of the API at any time, including the availability of the API. LICENSOR may also impose limits on certain features and services or restrict Licensee access to parts or all of the API or the LICENSOR Web sites without notice or liability.
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FEES AND PAYMENTS
8.1 LICENSOR reserves the right to charge (additional) fees for future use of, or access to the API or the LICENSOR services and Web sites (collectively, “LICENSOR API Services”) I LICENSOR’s sole discretion. If LICENSOR decides to charge for the LICENSOR API Services, such charges will be disclosed to Licensee prior to implementing such changes.
8.2 LICENSOR charges fees for certain services such as the downloading of such content to mobile devices and statistics based upon such content. The Licensee Application cannot employ the API to provide similar services to users free of charge. Further, where Licensee charges fees for such services or any services based upon the content provided by the LICENSOR’s API, Licensee is obligated to split any revenue generated 50/50 between LICENSOR and Licensee.
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TERM AND TERMINATION
9.1 Term. This Agreement will commence on the Effective Date and will continue in force thereafter unless terminated as provided herein.
9.2 Termination by LICENSOR. LICENSOR will have the right to change, suspend or discontinue all or any aspect of the API, including its availability, or terminate this Agreement (including Licensee’s use of the API) at any time.
9.3 Termination by Licensee. The Licensee will have the right to terminate this Agreement at any time upon written notice to LICENSOR.
9.4 Effect of Termination. Upon the termination of this Agreement for any reason, (i) all rights granted herein will immediately terminate; (ii) Licensee will immediately delete any and all LICENSOR Trademarks from Licensee’s website and cease all use of the LICENSOR Trademarks, and (iii) Licensee will immediately cease all use and distribution of the Licensee Application.
9.5 Survival of Terms. The terms and conditions of the following Sections will survive any termination or expiration of this Agreement: 1, 3, 4, 5.2, 7-17.
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WARRANTIES
10.1 Intellectual Property Warranties by Licensee. Licensee hereby represents, warrants and covenants to LICENSOR as follows:
(a) the Licensee Application will not (a) contain any virus, Trojan horse, worm, time bomb, cancelbot, or other computer programming routine that is intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data, or personal information; (b) create an unusually high load on LICENSOR’s servers, or (c) enables any user to interfere with other users’ use of the LICENSOR Applications;
(b) The Licensee Application (excluding the API) will not infringe any third party’s copyright, trade secret, or trademark rights;
(c) to the best of Licensee knowledge, the Licensee Application (excluding the API) does not infringe the United States patent of any third party issued as of the Effective Date; and
(d) in addition to the rights granted herein by LICENSOR, Licensee has all rights, permissions, and licenses necessary to create and distribute the Licensee Application.
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DISCLAIMER OF WARRANTIES
11.1 LICENSEE’S USE OF THE API IS AT LICENSEE’S SOLE RISK. THE API IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. LICENSOR EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
11.2 NOT LIMITING THE FOREGOING, LICENSOR MAKES NO WARRANTY THAT (I) THE API WILL MEET LICENSEE’S REQUIREMENTS, (II) THE API WILL OPERATE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, AND/OR THAT (III) ANY ERRORS IN THE API WILL BE CORRECTED.
11.3 ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE API IS OBTAINED AT LICENSEE OWN DISCRETION AND RISK AND LICENSEE WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO LICENSEE COMPUTER SYSTEM, NETWORK, OR ANY LOSS OF DATA, THAT MAY RESULT FROM THE DOWNLOAD OF ANY SUCH MATERIAL OR THE USE OF THE API.
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LIMITATION OF LIABILITY
LICENSOR SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE LICENSEE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE API, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR OTHERWISE), OR ANY OTHER PECUNIARY LOSS, WHETHER OR NOT LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES SHALL LICENSOR BE LIABLE TO LICENSEE FOR ANY AMOUNT.
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EXCULSIONS AND LIMITATIONS
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 8 AND 9 MAY NOT APPLY TO LICENSEE.
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INDEMNIFICATION
14.1 Licensee will indemnify, defend, and hold harmless LICENSOR, its parent, affiliates and subsidiaries, and/or its licensees against any and all claims, suits losses, liabilities, and/or judgments, including costs, expenses, damages, and legal fees based upon and arising from (I) Licensee’s violation of the rights of others, including without limitation any alleged infringement of any third-party intellectual property rights by the Licensee Application (excluding the API) or the use thereof; or (ii) Licensee’s breach of any of the foregoing warranties or violation of any other terms of this Agreement. LICENSOR will notify the Licensee of any claims within a reasonable time and will have the right, but not the obligation, to participate in any such contest, defense, or litigation through counsel of its own choosing at the Licensee’s expense. Licensee will not enter into any settlement in which the LICENSOR admits liability, or in connection with which LICENSOR’s intellectual property rights may be limited or compromised, with LICENSOR’s prior written approval, which LICENSOR will provide in its sole discretion.
14.2 Licensee will promptly notify LICENSOR of: (1) any claim, allegation, or notification of which Licensee has the knowledge, that the Licensee Application, the API, or the LICENSOR Applications infringe or may infringe the intellectual property rights of any other party; (2) any determination, discovery or notification that any party is or may be infringing the intellectual property rights of LICENSOR; and (3) any actual or threatened breach of any EULA of which Licensee becomes aware. The Licensee will provide LICENSOR with reasonable assistance in policing and enforcing the LICENSOR’s intellectual property rights under the provisions of the EULA.
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INJUNCTIVE RELIEF
Licensee acknowledges that a breach, actual or threatened, of this Agreement, may cause irreparable harm to LICENSOR, the amount of which may be extremely difficult to estimate, thus making any remedy at law inadequate. LICENSOR will therefore be entitled to obtain immediate injunctive relief, and any other relief LICENSOR deems appropriate from a court of competent jurisdiction without having to post a bond or other security or prove irreparable harm. This right will be in addition to any other remedy available to LICENSOR in law or equity.
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RELEASE AND WAIVER
To the maximum extent permitted by applicable law, Licensee hereby releases and waives all claims against LICENSOR, and its subsidiaries, affiliates, officers, agents, licensors, co-branders or to their partners, and employees from any and all liability for claims, damages (actual and/or consequential), costs and expenses (including litigation costs and attorneys’ fees) of every kind and nature, arising from or in any way related to its use of the API. If Licensee is a California resident, it waives its rights under California Civil Code § 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” The Licensee understands that any fact relating to any matter covered by this release may be found to be other than not believed to be true and Licensee accepts and assumes the risk of such possible differences in fact. In addition, Licensee expressly waives and relinquishes any and all rights and benefits which it may have under any other state or federal statute or common law principle of similar effect, the fullest extent permitted by law.
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CONFIDENTIALITY
The Licensee agrees that the Mutual Confidentiality and Nondisclosure Agreement previously executed between the parties governs its receipt, use, and reproduction of any Confidential Information (as defined in said Agreement) it receives in connection with the API.
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GENERAL
18.1 Notices. Any notice or communication from one Party to the other will be in writing and either personally delivered or sent via certified mail, postage prepaid, and return receipt requested addressed to such other Party at the address specified below or any other address as either Party may from time to time designate in writing to the other Party.
Notices to LICENSOR:
RawVoice, Inc.
Barry R. Kantz
17525 Egan Drive
Coopersville, MI 49404
For any notice of claims of Copyright or Trademark infringement, send notices to: legal@rawvoice.com
18.2 Independent Contractors. The relationship of the Parties under this Agreement is that of independent contractors. Neither Party will be deemed to be an employee, agent, partner nor legal representative of the other for any purpose and neither will have any right, power, or authority to create any obligation on behalf of the other.
18.3 Assignment. Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred by either Party, in whole or in part without the prior written consent of the other Party, which will not be unreasonably withheld; provided, however, that the LICENSOR may assign its rights and obligations under this Agreement in connection with a sale of assets, merger or consolidation, or similar transaction. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the Parties and their respective successors and assigned.
18.4 Waiver. Any waiver of the provisions of this Agreement or of a Party’s rights or remedies under this Agreement will be in writing to be effective. Failure, neglect, or delay by a Party to enforce the provisions of this Agreement or its rights or remedies at any time will not be construed as a waiver of such Party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such Party’s right to take subsequent action. No exercise or enforcement by either Party of any right or remedy under this Agreement will preclude the enforcement by such Party of any other right or remedy under this Agreement or that such Party is entitled by law to enforce.
18.5 Severability. In the event any provision of this Agreement is determined to be invalid, such invalidity will not affect the validity of the remaining portions of this Agreement, and the parties will promptly substitute for the invalid provision a valid and enforceable provision that most closely approximates the intent and economic effect of the invalid provision.
18.6 Integration. This Agreement contains the entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings, and agreements, either oral or written, between the Parties with respect to the said subject matter. This Agreement may not be amended, except by a writing signed by both Parties.
18.7 Governing Law. This Agreement will be interpreted and construed in accordance with the laws of the State of Michigan and the United States of America, without regard to conflict of law principles. All disputes arising out of this Agreement will be subject to the exclusive jurisdiction of the state and federal courts located in Ottawa County, Michigan, and the Western District of Michigan respectively, and each Party hereby consents to the personal jurisdiction thereof.
18.8 Expenses. The Parties acknowledge that neither Party is under any obligation to reimburse the other Party for any expenses or costs incurred by the other Party in the performance of its responsibilities under this Agreement. Any costs or expenses incurred by either Party will at that Party’s sole risk based upon its independent business judgment that such costs and expenses are appropriate.