1. This Agreement is between you (“you
”) and Audience, Inc. (“Audience
concerning your use of the online site currently located at http://www.audience.com/
(together with any successor site(s) and all Services (as defined below), the “Site
”). We provide users of the Site with access to certain content and services related to Audience’s products and services, which may include, without limitation, registration functionality, news, tools, text, technical resources, photos, audio and video clips, and links to third party websites, and other similar content (such content and services, collectively, the "Services
").2. Acceptance of Terms.
The Site is made available by Audience subject to this Agreement. We reserve the right to update or make changes to this Agreement from time to time in our sole discretion, which changes we may provide to you by any reasonable means, including without limitation, by posting the revised version of this Agreement on the Site. You can determine when this Agreement was last revised by referring to the “LAST UPDATED”
legend at the top of this Agreement. When using any Services (as defined below), you agree that you are subject to any additional posted guidelines, rules, terms and conditions applicable to such Services, which are hereby incorporated by reference into this Agreement.
We reserve the right, at any time and from time to time, temporarily or permanently, in whole or in part, to: modify or discontinue the Site, with or without notice; charge fees in connection with the use of the Site; modify and/or waive any fees charged in connection with the Site; and/or offer opportunities to some or all users of the Site. You agree that neither we nor any of our affiliates
(collectively, “Affiliated Entities
”) shall be liable to you or to any third party for any modification, suspension or discontinuance of the Site, in whole or in part, or of any Service, content, feature or product offered through the Site. Your continued use of the Site after such changes will indicate your acceptance of such changes.3. Jurisdictional Issues.
The Site is controlled and operated by Audience from the United States, and is not intended to subject Audience to the laws or jurisdiction of any state, country or territory other than that of the United States. Audience does not represent or warrant that the Site or any part thereof is appropriate or available for use in any particular jurisdiction other than the United States. In choosing to access the Site, you do so on your own initiative and at your own risk, and you are responsible for complying with all local laws, rules and regulations. You are also subject to United States export controls and are responsible for any violations of such controls, including any United States embargoes or other federal rules and regulations restricting exports. We may limit the Site's availability, in whole or in part, to any person, geographic area or jurisdiction we choose, at any time and in our sole discretion.4. Audience's Proprietary Rights.
The information and materials made available through the Site, including the Services, are and shall remain the property of Audience and its licensors and suppliers, and are protected by copyright, trademark, patent, and/or other proprietary rights and laws. Subject to your compliance with this Agreement, and solely for so long as you are permitted by Audience to access and use the Site, you may view one (1) copy of any content on the Site to which we provide you access hereunder on any single computer solely for your personal, non-commercial use, provided that you keep intact all copyright and other proprietary notices. Except as expressly authorized in advance by Audience in writing, you agree not to reproduce, modify, rent, lease, loan, sell, distribute, or create derivative works based (whether in whole or in part) on, all or any part of the Site or any materials made available through the Site.
Your use of certain software and other content made available through the Site may be subject to additional license terms and conditions, as set forth in a separate written license agreement between you and Audience (“Additional Terms
”). In the event of any conflict between this Agreement and the Additional Terms with respect to your license rights to such software or other content, the Additional Terms will control.
All trademarks and service marks on the Site not owned by Audience are the property of their respective owners. The trade names, trademarks and service marks owned by Audience, whether registered or unregistered, may not be used in connection with any product or service that is not ours, in any manner that is likely to cause confusion. Nothing contained on the Site should be construed as granting, by implication, estoppel or otherwise, any license or right to use any of Audience’s trade names, trademarks or service marks without our express prior written consent.
If you make any comments or suggestions to Audience with respect to the Site, Services, or Audience products or services (“Feedback
”), then, notwithstanding anything herein to the contrary, you hereby assign and agree to assign to Audience all right, title and interest in and to the Feedback, effective upon submission or provision to Audience thereof. You further waive any “moral” rights or other rights with respect to attribution of authorship or integrity of such Feedback that you may have under any applicable law and under any legal theory.5. Information Submitted Through the Site.
”), which is hereby incorporated into this Agreement by this reference. You represent and warrant that any information you provide in connection with your use of the Site is and shall remain true, accurate, and complete, and that you will maintain and update such information regularly. You agree that if any information you provide is false, inaccurate, obsolete or incomplete, we may terminate your use of the Site and/or any of the Services.6. Rules of Conduct.
While using the Site you will comply with all applicable laws, rules and regulations. In addition, we expect users of the Site to respect the rights and dignity of others. Your use of the Site is conditioned on your compliance with the rules of conduct set forth in this section; your failure to comply with such rules may result in termination of your access to the Site pursuant to Section 15 below. You agree that you will not:
- Post, transmit, or otherwise make available, through or in connection with the Site:
- Anything that is or may be (a) threatening, harassing, degrading, hateful or intimidating; (b) defamatory; (c) fraudulent or tortious; (d) obscene, indecent, pornographic or otherwise objectionable; or (e) protected by copyright, trademark, trade secret, right of publicity or other proprietary right without the express prior consent of the owner of such right.
- Any material that would give rise to criminal or civil liability; that encourages conduct that constitutes a criminal offense; or that encourages or provides instructional information about illegal activities or activities such as “hacking,” "cracking," or "phreaking."
- Any virus, worm, Trojan horse, Easter egg, time bomb, spyware, or other computer code, file, or program that is harmful or invasive or may or is intended to damage or hijack the operation of, or to monitor the use of, any hardware, software or equipment.
- Any unsolicited or unauthorized advertising, promotional material, "junk mail," "spam," "chain letter," "pyramid scheme" or investment opportunity, or any other form of solicitation.
- Any material, non-public information about a company without the proper authorization to do so.
- Use the Site for any fraudulent or unlawful purpose.
- Use the Site to defame abuse, harass, stalk, threaten or otherwise violate the legal rights of others, including without limitation others' privacy rights or rights of publicity, or harvest or collect personally identifiable information about other users of the Site.
- Impersonate any person or entity, including without limitation any representative of Audience; falsely state or otherwise misrepresent your affiliation with any person or entity in connection with the Site; or express or imply that we endorse any statement you make.
- Interfere with or disrupt the operation of the Site or the servers or networks used to make the Site available; or violate any requirements, procedures, policies or regulations of such networks.
- Restrict or inhibit any other person from using the Site (including without limitation by hacking or defacing any portion of the Site).
- Use the Site to advertise or offer to sell or buy any goods or services without Audience’s express prior written consent.
- Reproduce, duplicate, copy, sell, resell or otherwise exploit for any commercial purposes, any portion of, use of, or access to the Site.
- Modify, adapt, translate, reverse engineer, decompile or disassemble any portion of the Site.
- Remove any copyright, trademark or other proprietary rights notice from the Site or materials originating from the Site.
- Frame or mirror any part of the Site without Audience’s express prior written consent.
- Create a database by systematically downloading and storing Site content.
- Use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, "scrape," "data mine" or in any way gather Site content or reproduce or circumvent the navigational structure or presentation of the Site without Audience’s express prior written consent. Notwithstanding the foregoing, Audience grants the operators of public search engines permission to use spiders to copy materials from the site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials. Audience reserves the right to revoke these exceptions either generally or in specific cases.
Additionally, you acknowledge and agree that you (and not Audience) are responsible for obtaining and maintaining all telecommunications, broadband, and computer hardware, equipment, and services needed to access and use the Site, and paying all charges related thereto.7. Accuracy of Information.
We attempt to ensure that information on this Site is complete, accurate and current. Despite our efforts, however, the information on this Site may occasionally be inaccurate, incomplete or out of date. We make no representation as to the completeness, accuracy or currentness of any information on this Site. For example, products described on this Site may be unavailable, may have different attributes than those listed, or may actually carry a different price than that stated on this Site (if any). In addition, we may make changes in information about price and availability without notice. 8. Registration; User Names and Passwords.
You may be required to register with Audience in order to access certain Services or areas of the Site. With respect to any such registration, we may refuse to grant you, and you may not use, a user name (or e-mail address) that is already being used by someone else; that may be construed as impersonating another person; that belongs to another person; that personally identifies you; that violates the intellectual property or other rights of any person; that is offensive; or that we reject for any other reason in our sole discretion.
Your user name and password are for your personal use only, and not for use by any other person. You are responsible for maintaining the confidentiality of any password you may use to access the Site, and agree not to transfer your password or user name, or lend or otherwise transfer your use of or access to the Site, to any third party. You are fully responsible for all interaction with the Site that occurs in connection with your password or user name (including, without limitation, all Transactions). You agree to immediately notify Audience of any unauthorized use of your password or user name or any other breach of security related to your account or the Site, and to ensure that you “log off”/exit from your account with the Site (if applicable) at the end of each session. We are not liable for any loss or damage arising from your failure to comply with any of the foregoing obligations.9. Profiles and Forums.
We and/or our service providers may make available through the Site services (for example, message boards, forums, blogs, chat functionality, messaging functionality and comment functionality on the Site, among other services) to which you are able to post information and materials (each, a "Forum
Information contained in the Forums, and in any user profiles created in connection with the Forums or otherwise in connection with the Site (“Profiles
”), may be provided by employees of Audience and the Affiliated Entities as well as by third party visitors to the Site. Please note that Site visitors may post messages or make statements in the Profiles and Forums that are inaccurate, misleading or deceptive. Audience, the Affiliated Entities and its and their respective employees, officers, directors, shareholders, affiliates, agents, representatives, licensors, suppliers and service providers (the “Audience Parties
”) neither endorse nor are responsible for any opinion, advice, information or statements made in the Profiles and Forums by third parties. Without limitation, the Audience Parties are not responsible for any information or materials made available through the Profiles and Forums by parties other than Audience (including without limitation errors or omissions in Profiles and Forum postings or links or images embedded in a Profile or in Forum messages) or results obtained by using any such information or materials. Under no circumstances will the Audience Parties be liable for any loss or damage caused by your reliance on such information or materials. The opinions expressed in the Profiles and Forums reflect solely the opinions of the individuals who submitted such opinions, and may not reflect the opinions of Audience.
In addition, the Audience Parties have no control over, and shall have no liability for, any damages resulting from the use (including without limitation republication) or misuse by any third party of information voluntarily made public through a Profile or a Forum or any other part of the Site. IF YOU CHOOSE TO MAKE ANY OF YOUR PERSONALLY IDENTIFIABLE OR OTHER INFORMATION PUBLICLY AVAILABLE IN A PROFILE OR A FORUM OR OTHERWISE ON THE SITE, YOU DO SO AT YOUR OWN RISK.10. License.
For purposes of clarity, you retain ownership of any information, content and/or materials you submit through a Profile or a Forum or otherwise through the Site (each, a “Submission
”). However, please note that we need certain rights to your Submissions to be able to make them available on the Site. As such, you hereby grant to Audience, the Affiliated Entities and its and their respective service providers and designees a worldwide, non-exclusive, transferable, sublicenseable (through multiple tiers), royalty-free, perpetual, irrevocable right and license, without compensation to you: to use, reproduce, distribute, adapt (including without limitation edit, modify, translate, and reformat), create derivative works of, transmit, publicly display, publicly perform and otherwise exploit such Submission, in any media now known or hereafter developed.
This license is non-exclusive (so you can license your Submissions to others), worldwide (as the Internet is global in its reach), fully-paid up and royalty-free (so that we do not have to pay you for posting your Submissions), sublicenseable through multiple tiers (so that we can use our service providers and subcontractors to provide Services).
For each Submission, you represent and warrant that you have all rights necessary for you to grant the licenses granted in this section, and that such Submission, and your provision thereof to and through the Site, comply with all applicable laws, rules and regulations. You further irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding each Submission that you may have under any applicable law under any legal theory. We request this waiver to help ensure that we have all the rights we may need to provide the Services available through the Site.11. Monitoring.
You acknowledge and agree that we reserve the right (but have no obligation) to do any or all of the following, at our discretion: (a) monitor Submissions; (b) alter, remove, or refuse to post or allow to be posted any Submission; and/or (c) disclose any Submissions, and the circumstances surrounding their transmission, to any third party, in each of the foregoing cases, in order to operate the Site; to protect the Audience Parties, and the Site's users and visitors; to comply with legal obligations or governmental requests; to enforce this Agreement; or for any other reason or purpose.12. Links.
The Site may provide links to other web sites and online resources. Unless otherwise explicitly stated, because Audience has no control over such sites and resources, you acknowledge and agree that the Audience Parties are not responsible for the availability of such external sites or resources, and neither endorse nor are responsible or liable for any content, advertising, products or other materials on or available through such sites or resources. Other web sites may provide links to the Site with or without our authorization. You acknowledge and agree that the Audience Parties do not endorse such sites, and are not and shall not be responsible or liable for any links from those sites to the Site, any content, advertising, products or other materials available on or through such other sites, or any loss or damages incurred in connection therewith.
YOU AGREE THAT YOUR USE OF THIRD PARTY WEB SITES AND RESOURCES, INCLUDING WITHOUT LIMITATION, YOUR USE OF ANY CONTENT, INFORMATION, DATA, ADVERTISING, PRODUCTS, OR OTHER MATERIALS ON OR AVAILABLE THROUGH SUCH WEB SITES AND RESOURCES, IS AT YOUR OWN RISK AND IS SUBJECT TO THE TERMS AND CONDITIONS OF USE APPLICABLE TO SUCH SITES AND RESOURCES.
Audience shall have the right, at any time and in its sole discretion, to block links to the Site through technological or other means without prior notice.13. Disclaimer of Warranties and Limitation of Liability.
THE SITE, THE SERVICES, AND ANY GOODS OR SERVICES MADE AVAILABLE THROUGH OR IN CONNECTION WITH THE SITE ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY. YOU AGREE THAT YOU MUST EVALUATE, AND THAT YOU BEAR ALL RISKS ASSOCIATED WITH, THE USE OF THE SITE, INCLUDING WITHOUT LIMITATION, ANY RELIANCE ON THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY SERVICES AVAILABLE THROUGH THE SITE. THE AUDIENCE PARTIES DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SITE AND ANY PRODUCT OR SERVICE (INCLUDING WITHOUT LIMITATION, THIRD PARTY PRODUCTS AND SERVICES) OBTAINED THROUGH THE SITE, TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND TITLE.
THE AUDIENCE PARTIES WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, USE, DATA, LOSS OF OTHER INTANGIBLES, LOSS OF SECURITY OF INFORMATION YOU HAVE PROVIDED IN CONNECTION WITH YOUR USE OF THE SITE, OR UNAUTHORIZED INTERCEPTION OF ANY SUCH INFORMATION BY THIRD PARTIES, EVEN IF ADVISED IN ADVANCE OF SUCH DAMAGES OR LOSSES. IN PARTICULAR, AND WITHOUT LIMITATION, THE AUDIENCE PARTIES WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM YOUR USE OF OR INABILITY TO USE THE SITE OR FROM ANY CONTENT POSTED ON THE SITE BY AUDIENCE OR ANY THIRD PARTY. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SITE IS TO STOP USING THE SITE. THE MAXIMUM LIABILITY OF AUDIENCE FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR OTHERWISE, SHALL BE THE TOTAL AMOUNT, IF ANY, PAID BY YOU TO AUDIENCE TO ACCESS AND USE THE SITE.
IT IS POSSIBLE THAT APPLICABLE LAW MAY NOT ALLOW FOR LIMITATIONS ON CERTAIN IMPLIED WARRANTIES OR EXCLUSIONS OR LIMITATIONS OF CERTAIN DAMAGES; SOLELY TO THE EXTENT THAT SUCH LAW APPLIES TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
While we try to maintain the integrity and security of the Site and the servers from which the Site is operated, we do not guarantee that the Site will be or remain secure, complete or correct, or that access to the Site will be uninterrupted. The Site may include inaccuracies, errors and materials that violate or conflict with this Agreement. Additionally, third parties may make unauthorized alterations to the Site. If you become aware of any unauthorized third party alteration to the Site, contact us at
with a description of the material(s) at issue and the URL or location on the Site where such material(s) appear.14. Indemnity.
Except to the extent prohibited by applicable law, you agree to defend, indemnify and hold harmless the Audience Parties from and against all claims, losses, costs and expenses (including attorneys fees) arising out of (a) your use of, or activities in connection with, the Site (including all Transactions); or (b) any violation of this Agreement by you.15. Termination.
This Agreement is effective until terminated. Audience, in its sole discretion, may terminate your access to or use of the Site, at any time and for any reason, including if Audience believes that you have violated or acted inconsistently with the letter or spirit of this Agreement. Upon any such termination, your right to use the Site will immediately cease. You agree that any termination of your access to or use of the Site may be effected without prior notice, and that Audience may immediately deactivate or delete your password and user name, and all related information and files associated with it, and/or bar any further access to such information or files. You agree that Audience and the Affiliated Entities shall not be liable to you or any third party for any termination of your access to the Site or to any such information or files, and shall not be required to make such information or files available to you after any such termination. Sections 2, 3, 4, 5, 7, 9 through 16, 18, and 20 through 22 shall survive any expiration or termination of this Agreement.16. Governing Law; Jurisdiction. Governing Law; Arbitration.
This Agreement is governed by and shall be construed in accordance with the laws of the State of California, U.S.A., without regard to its principles of conflicts of law. THIS SECTION PROVIDES FOR RESOLUTION OF DISPUTES THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY. All disputes arising under or relating to these Terms shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules and Supplementary Procedures for Consumer-Related Disputes (“Supplementary Procedures
”), as amended by the terms and conditions of these Terms. The Supplementary Procedures are available online athttp://www.adr.org/sp.asp?id=22014
. To the extent that the arbitrator deems reasonable, the arbitrator shall conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances. Any in-person appearances requested by the arbitrator shall be held in Santa Clara County, California. The arbitrator's decision shall be based upon the substantive laws of the State of California without regard to its principles of conflicts of law. Arbitration proceedings shall be conducted in English and shall be conducted in a manner that preserves confidentiality. The arbitrator's decision shall be final and binding. The award rendered by the arbitrator(s) may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing herein shall preclude Audience from seeking any injunctive relief or other provisional remedy in U.S. state or federal courts for protection of its intellectual property rights (including the rights of its licensors), and you agree to exclusive jurisdiction of the state and federal courts located in Santa Clara County, California, and waive any jurisdictional, venue or inconvenient forum objections to such courts.17. Contact Us.
If you have any questions regarding the meaning or application of this Agreement, please direct such questions to
. Please note that e-mail communications will not necessarily be secure; accordingly you should not include credit card information or other sensitive information in your e-mail correspondence with us.18. Filtering.
Pursuant to 47 U.S.C. Section 230(d) as amended, we hereby notify you that parental control protections (such as computer hardware, software or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available on the two web sites GetNetWise (http://kids.getnetwise.org/
) and OnGuard Online (http://onguardonline.gov/
). Please note that Audience does not endorse any of the products or services listed at such site.19. Notice for California Residents.
Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: If you have a question or complaint regarding the Site, please send an e-mail to
. You may also contact us by writing to 440 Clyde Ave., Mountain View, CA 94043, or by calling us at 650-254-2800. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.20. Claims of Copyright Infringement.
The Digital Millennium Copyright Act of 1998 (the “DMCA
”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials available on the Site infringe your copyright, you (or your agent) may send Audience a notice requesting that Audience remove the material or block access to it. If you believe in good faith that someone has wrongly filed a notice of copyright infringement against you, the DMCA permits you to send Audience a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. See http://www.copyright.gov/
for details. Notices and counter-notices should be sent to:
440 Clyde Ave.
Mountain View, CA 94043
We suggest that you consult your legal advisor before filing a notice or counter-notice.21. Ability to Enter Into This Agreement.
By using the Site, you affirm that you are of legal age to enter into this Agreement or, if you are not, that you have obtained parental or guardian consent to enter into this Agreement.22. Miscellaneous.
This Agreement does not, and shall not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and Audience. If any provision of this Agreement is found to be unlawful, void or for any reason unenforceable, that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provision. You may not assign, transfer or sublicense any or all of your rights or obligations under this Agreement without our express prior written consent. We may assign, transfer or sublicense any or all of our rights or obligations under this Agreement without restriction.
No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained herein is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof. This, together with all policies referred to herein, is the entire Agreement between you and Audience relating to the subject matter herein and supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and Audience relating to such subject matter. Notices to you may be made via posting to the Site, by e-mail, or by regular mail, in Audience's discretion. The Site may also provide notices of changes to this Agreement or other matters by displaying such notices or by providing links to such notices. Without limitation, you agree that a printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Audience will not be responsible for failures to fulfill any obligations due to causes beyond its control.
Site © 2006-2012
Audience, Inc. unless otherwise noted. All rights reserved.