< Back
Terms of Service
Effective Aug 21, 2021
These Terms of Service constitute a legally binding agreement between you and Audigo Labs., Inc. (together with its affiliates, “Audigo”, “we,” “our” or “us”) governing your use of our Products or Devices (as defined below), Software (as defined below), services, mobile application (the “App”), and website (the “Site” and collectively with the foregoing, the “Services”).
YOU ACKNOWLEDGE AND AGREE THAT, BY CLICKING ON THE “I AGREE” OR SIMILAR BUTTON, REGISTERING FOR AN ACCOUNT, DOWNLOADING THE APP OR ANY APP UPGRADES, USING THE APP ON YOUR MOBILE DEVICE, OR ACCESSING OR USING THE SERVICES, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE AND ANY ADDITIONAL TERMS (AS DEFINED BELOW), WHETHER OR NOT YOU HAVE REGISTERED WITH THE SITE OR THE APP. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE AND THE ADDITIONAL TERMS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SERVICES. These Terms of Service are effective as of the date you first click “I agree” (or similar button or checkbox) or use or access the Services, whichever is earlier. If you accept or agree to these Terms of Service on behalf of your employer or another legal entity, you represent and warrant that (i) you have full legal authority to bind your employer or such entity to these Terms of Services; (ii) you have read and understand these Terms of Service; and (iii) you agree to these Terms of Service on behalf of the party that you represent. In such event, “you” and “your” will refer and apply to your employer or such other legal entity.
In addition to these Terms of Service, the following additional terms (“Additional Terms”) apply to your use of the Services (these Terms of Service, together with the Additional Terms, shall be collectively referred to as the “Terms of Service” or this “Agreement”). By using or accessing the Services or purchasing or pre-ordering a Product or Device, you acknowledge that you have read and agree to be bound by this Agreement, including the following Additional Terms, which are incorporated herein by reference:
Our Privacy Policy, available at https://www.audigolabs.com/privacy, which describes our policies with respect to the collection, use, and disclosure of personal information you submit to us or which we collect about you.
Any applicable Mobile App End User License Agreement (“Mobile App EULA”), available at https://www.audigolabs.com/legal which we may have in place from time to time, which governs your use of the App.
Our Product Terms of Service and End User License Agreement (“Product Terms and EULA”), available at https://www.audigolabs.com/legal, which we may have in place from time to time, which governs your use of the Devices and any Software embedded therein.
Any warranties or additional purchasing terms that we include with the Services or any Device.
PLEASE NOTE: THESE TERMS OF SERVICE GOVERN HOW DISPUTES BETWEEN YOU AND AUDIGO CAN BE RESOLVED. IT CONTAINS A BINDING AND FINAL ARBITRATION PROVISION AND CLASS ACTION WAIVER (SECTION 14). PLEASE READ CAREFULLY AS IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING, IF APPLICABLE, YOUR RIGHT TO OPT OUT OF ARBITRATION.
1. Our Services
Audigo offers products and services will allow users to record, store, and edit high quality audio using the Audigo smart microphone and any related accessories or devices (each a “Product” or “Device”), the software embedded in each Device (the “Software”), the Site, the App, and related Services.
2. Account, Password, Security, and Mobile Phone Use
You must register with Audigo and create an account to use the Services (an “Account”) and as part of that process you will be requested to provide certain information, including without limitation your name, full address, phone number and email address. By using the Services, you agree to provide true, accurate, current and complete information as prompted by the registration process and to maintain and promptly update the Account information to keep it accurate, current and complete. You are the sole authorized user of your Account. You are responsible for maintaining the confidentiality of any log-in, password, and Account number provided by you or given to you by Audigo for accessing the Services. You are solely and fully responsible for all activities that occur under your password or Account, even if not authorized by you. Audigo has no control over the use of any user’s Account and expressly disclaims any liability derived therefrom. Should you suspect that any unauthorized party may be using your password or Account or you suspect any other breach of security, you agree to contact Audigo immediately.
The person signing up for the Services will be the contracting party (“Account Owner”) for the purposes of these Terms of Service and will be the person who is authorized to use any corresponding Account we provide to the Account Owner in connection with the Services; provided, however, that if you are signing up for the Services on behalf of your employer, your employer shall be the Account Owner. As the Account Owner, you are solely responsible for complying with these Terms of Service and only you are entitled to all benefits accruing thereto. Your Account is not transferable to any other person or account. You must immediately notify us of any unauthorized use of your password or identification or any other breach or threatened breach of our security or the security of your Account.
By providing your mobile phone number and using the Services, you hereby affirmatively consent to Audigo’s use of your mobile phone number for calls and recurring texts, (including with an autodialer and/or prerecorded voice) in order to (i) perform and improve upon the Services, (ii) facilitate the carrying out our Services, and (iii) provide you with information and reminders regarding your registration, changes and updates, service outages or alterations. These calls and texts may include, among other things, push notifications and other reminders delivered through our App. Audigo will not assess any charges for calls or texts, but standard message, data or other charges from your wireless carrier may apply. You may opt-out of receiving texts messages from us by modifying your Account settings on the Site or the App, texting “STOP” in response to any texts, or by emailing support@audigolabs.com and specifying you want to opt-out of texts. You may opt-out of receiving calls from us by stating that you no longer wish to receive calls during any call with us, or by emailing support@audigolabs.com and specifying you want to opt-out of calls. You understand that we may send you a text confirming any opt-out by you.
3. Billing and Payment
Payment and any other expenses must be paid through the third party payment processing system (the “PSP”) as indicated on the Services. You may be required to register with the PSP, agree to terms of service of the PSP, provide your payment details to the PSP and go through a vetting process at the request of the PSP to set up an account with the PSP (the “PSP Services Agreement”). By accepting these Terms of Service, you agree that you have downloaded or printed, and reviewed and agreed to, the PSP Services Agreement. Please note that Audigo is not a party to the PSP Services Agreement and that you, the PSP and any other parties listed in the PSP Services Agreement are the parties to the PSP Services Agreement and that Audigo has no obligations, responsibility or liability to any user or any other party under the PSP Services Agreement.
All prices and fees displayed on the Services are exclusive of applicable federal, provincial, state, local or other governmental sales, goods and services or other taxes, fees or charges now in force or enacted in the future (“Taxes”). Any applicable Taxes are based on the rates applicable to the billing address you provide to us, and will be calculated at the time of a transaction is charged to your Account. Unless otherwise indicated, all prices, fees and other charges are in U.S. dollars, and all payments shall be in U.S. currency.
4. User Generated Content
“User Generated Content” is defined as any content, information, and materials that may be textual, audio, or visual that you provide, submit, upload, publish, or make otherwise available to the Services and our users. You are solely responsible for User Generated Content, and we act merely as a passive conduit for your online distribution and publication of your User Generated Content. You acknowledge and agree that Audigo:
Is not involved in the creation or development of User Generated Content.
Disclaims any responsibility for User Generated Content.
Cannot be liable for claims arising out of or relating to User Generated Content.
Is not obligated to monitor, review, or remove User Generated Content, but reserves the right to limit or remove User Generated Content on the Services at its sole discretion.
You hereby represent and warrant to Audigo that your User Generated Content (i) will not be false, inaccurate, incomplete or misleading; (ii) will not infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary right or rights of publicity, personality or privacy; (iii) will not violate any law, statute, ordinance, or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination, false advertising, anti-spam or privacy); (iv) will not be defamatory, libelous, unlawfully threatening, or unlawfully harassing; (v) will not be obscene or contain pornography (including but not limited to child pornography) or be harmful to minors; (vi) will not contain any viruses, Trojan Horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (vii) will not represent you being employed or directly engaged by or affiliated with Audigo or purport you to act as a representative or agent of Audigo; and (viii) will not create liability for Audigo or cause Audigo to lose (in whole or in part) the services of its ISPs or other suppliers.
By making available any User Generated Content through the Services, you hereby grant to Audigo a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, access, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast and otherwise exploit such User Generated Content on, through or by means of the Services.
We do not claim any ownership rights in any such User Generated Content and nothing in this Agreement will be deemed to restrict any rights that you may have to use and exploit any such User Generated Content.
5. Representations and Warranties
You represent and warrant that: (i) you are 18 years of age or older or are at least of the legally required age in the jurisdiction in which you reside, and are otherwise capable of entering into binding contracts, and (ii) you have the right, authority and capacity to enter into this Agreement and to abide by the terms and conditions of this Agreement, and that you will so abide. Where you enter into this Agreement on behalf of a company or other organization, you represent and warrant that you have authority to act on behalf of that entity and to bind that entity to this Agreement.
You further represent and warrant that (i) you have read, understand, and agree to be bound by these Terms of Service and the Privacy Policy in order to access and use the Services, [(ii) you will act professionally and responsibly in your interactions with other users,] and (iii) when using or accessing the Services, you will act in accordance with any applicable local, state, or federal law or custom and in good faith.
You agree not to engage in any of the following prohibited activities, among others: (i) copying, distributing, or disclosing any part of the Services in any medium other than as allowed by the Services and these Terms of Service; (ii) using any automated system (other than any functionalities of the Services), including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Services; (iii) transmitting spam, chain letters, or other unsolicited email or attempting to phish, pharm, pretext, spider, crawl, or scrape; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Services; (v) violating any international, federal, provincial or state regulations, rules, laws, or local ordinances; (vi) conducting any unlawful purposes or soliciting others to perform or participate in any unlawful acts; (vii) uploading invalid data, viruses, worms, or other software agents through the Services; (viii) infringing upon or violate our intellectual property rights or the intellectual property rights of others; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) harassing, insulting, harming, abusing, defaming, abusing, harassing, stalking, threatening, intimidating or otherwise violating the legal rights (such as of privacy and publicity) of any other users or visitors of the Services or staff member of Audigo; (xi) interfering with or any activity that threatens the performance, security or proper functioning of the Services; (xii) uploading or transmitting viruses or any other type of malicious code; (xiii) attempting to decipher, decompile, disassemble or reverse engineer any of the software or algorithms used to provide the Services; (xiv) bypassing the security features or measures we may use to prevent or restrict access to the Services, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Services or the content therein; (xv) attempting to access unauthorized Accounts or to collect or track the personal information of others; (xvi) using the Services for any purpose or in any manner that infringes the rights of any third party; or (xvii) encouraging or enabling any other individual to do any of the foregoing.
You hereby warrant and represent that, other than as fully and promptly disclosed to Audigo as set forth below, you do not have any motivation, status, or interest which Audigo may reasonably wish to know about in connection with the Services, including without limitation, if you are using or will or intend to use the Services for any journalistic, investigative, or unlawful purpose. You hereby warrant and represent that you will promptly disclose to Audigo in writing any such motivation, status or interest, whether existing prior to registration or as arises during your use of the Services.
6. Mobile App Updates and Upgrades
By installing the App, you consent to the installation of the App and any updates or upgrades that are released through the Services. The App (including any updates or upgrades) may (i) cause your device to automatically communicate with Audigo’s servers to deliver the App functionality and to record usage metrics, (ii) affect App-related preferences or data stored your device, and (iii) collect personal information as set out in our Privacy Policy, including location information. You can uninstall the App at any time.
7. Termination and Suspension
Unless otherwise agreed to in writing between you and Audigo, either party may terminate these Terms of Service for any or no cause, at any time. You may cancel and delete your Account at any time by either using the features on the Services to do so (if applicable and available) or by written notice to support@audigolabs.com . After cancellation, you will no longer have access to your Account, your profile or any other information through the Services. The provisions of these Terms of Service which by their intent or meaning intended to survive such termination, including without limitation the provisions relating to disclaimer of warranties, limitations of liability, and indemnification, shall survive the any termination of these Terms of Service and any termination of your use of or subscription to the Services and shall continue to apply indefinitely.
We reserve the right to refuse the Services to anyone for any reason at any time. Audigo may terminate or limit your right to use the Services in the event that we are investigating or believe that you have breached any provision of this Agreement, by providing you with written or email notice. Such termination or limitation will be effective immediately upon delivery of such notice. If Audigo terminates or limits your right to use the Services pursuant to this section, you are prohibited from registering and creating a new Account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party.
Even after your right to use the Services is terminated or limited, this Agreement will remain enforceable against you. Audigo reserves the right to take appropriate legal action, including but not limited to pursuing arbitration in accordance with Section 14 of these Terms of Service.
Audigo reserves the right to modify or discontinue, temporarily or permanently, all or any portion of the Services at its sole discretion. Audigo is not liable to you for any modification or discontinuance of all or any portion of the Services. Audigo has the right to restrict anyone from completing registration as a user if Audigo believes such person may threaten the safety and integrity of the Services, or if, in Audigo’s discretion, such restriction is necessary to address any other reasonable business concern.
Following the termination or cancellation of your Account (as defined below), we reserve the right to delete all your data, including any User Generated Content, in the normal course of operation. Your data cannot be recovered once your Account is terminated or cancelled.
8. Links to Third-Party Websites
The Services may contain links (such as hyperlinks) to third-party websites. Such links do not constitute endorsement by Audigo or association with those websites, their content or their operators. Such links (including without limitation external websites that are framed by the Services as well as any advertisements displayed in connection therewith) are provided as an information service, for reference and convenience only. Audigo does not control any such websites and is not responsible for their (i) availability or accuracy, or (ii) content, advertising, products, or services. It is your responsibility to evaluate the content and usefulness of the information obtained from other websites. You acknowledge and agree that Audigo is not involved in the creation or development of third-party websites and disclaims any responsibility for third-party websites and cannot be liable for claims arising out of or relating to third-party websites. Further, you acknowledge and agree that Audigo has no obligation to monitor, review, or remove links to third-party websites, but reserves the right to limit or remove links to third-party websites on the Services at its sole discretion.
The use of any website controlled, owned or operated by third parties is governed by the terms and conditions of use and privacy policies for those websites. You access such third-party websites at your own risk. Audigo expressly disclaims any liability arising in connection with your use and/or viewing of any websites or other material associated with links that may appear on the Services. You hereby agree to hold Audigo harmless from any liability that may result from the use of links that may appear on the Services.
As part of the functionality of the Services, you may link your Account with online accounts you may have with third-party service providers, such as Facebook (each such account, a “Third-Party Account”) by either: (i) providing your Third-Party Account login information through the Services; or (ii) allowing Audigo to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to disclose your Third-Party Account login information to Audigo and/or grant Audigo access to your Third-Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating Audigo to pay any fees or making Audigo subject to any usage limitations imposed by such third-party service providers. By granting Audigo access to any Third-Party Accounts, you understand that (1) Audigo may access, make available and store (if applicable) any content that you have provided to and stored in your Third-Party Account (the “SNS Content”) so that it is available on and through the Services via your Account, including without limitation any friend lists, and (2) Audigo may submit and receive additional information to your Third-Party Account to the extent you are notified of this when you link your Account with the Third-Party Account. Unless otherwise specified in these Terms of Service, all SNS Content, if any, shall be considered to be User Generated Content. Depending on the Third-Party Accounts you choose, and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your Account on the Services. Please note that if a Third-Party Account or associated service becomes unavailable or Audigo’s access to such Third-Party Account is terminated by the third-party service provider, then SNS Content may no longer be available on and through the Services. You will have the ability to disable the connection between your Account on the Services and your Third-Party Accounts at any time, as set forth below. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD PARTY PROVIDERS. Audigo makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality, or non-infringement, and Audigo is not responsible for any SNS Content.
9. Intellectual Property Rights
All text, graphics, editorial content, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, designs, trademarks, logos, typefaces and other content (collectively “Proprietary Material”) that users see or read through the Services is owned by Audigo, excluding User Generated Content, which users hereby grant Audigo a license to use. Proprietary Material is protected in all forms, media and technologies now known or hereinafter developed. Audigo owns all Proprietary Material, as well as the coordination, selection, arrangement and enhancement of such Proprietary Materials as a Collective Work under the United States Copyright Act, as amended. The Proprietary Material is protected by the domestic and international laws governing copyright, patents, and other proprietary rights. You may not copy, download, use, redesign, reconfigure, or retransmit anything from the Services without Audigo’s express prior written consent and, if applicable, the holder of the rights to the User Generated Content.
Any use of such Proprietary Material, other than as permitted therein, is expressly prohibited without the prior permission of Audigo and, if applicable, the holder of the rights to the User Generated Content.
The service marks and trademarks of Audigo, including without limitation Audigo and Audigo logos, are service marks owned by Audigo. Any other trademarks, service marks, logos and/or trade names appearing via the Services are the property of their respective owners. You may not copy or use any of these marks, logos or trade names without the express prior written consent of the owner.
Additionally, you may choose to or we may invite you to submit comments, ideas, or feedback about the Services, including without limitation about how to improve our services or our products (“Feedback”). By submitting any Feedback, you agree that your disclosure is gratuitous, unsolicited, and without restriction and will not place Audigo under any fiduciary or other obligation, and that we are free to use the Feedback without any additional compensation to you, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Audigo does not waive any rights to use similar or related Feedback previously known to Audigo, developed by its employees, or obtained from sources other than you. You acknowledge that all email and other correspondence that you submit to us shall become our sole and exclusive property.
To the terms and conditions hereof, you are hereby granted a limited, nonexclusive, non transferable, freely revocable, license to access and use the Services. We may terminate this license at any time for any reason or no reason. The Services and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, reports generated by the Services, and copyrights (the “Audigo Content''), and all Intellectual Property Rights (as defined below) related thereto, are the exclusive property of Audigo or, as applicable, its licensors. Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, publicly distribute, publicly transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any materials or content accessible on the Services. Use of the Audigo Content or materials on the Services for any purpose not expressly permitted by this Agreement is strictly prohibited. For the purposes of this Agreement, “Intellectual Property Rights'' means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
Your use of the Services and the relating licenses granted hereunder are also conditioned upon your strict adherence to the letter and spirit of the various applicable guidelines and any end user licenses associated with your use of the App. Audigo may modify such guidelines in its sole discretion at any time. Audigo reserves the right to terminate your Account and access to the Services if it determines that you have violated any such applicable guidelines.
10. Copyright Complaints and Copyright Agent
Audigo respects the intellectual property of others, and expects users to do the same. If you believe, in good faith, that any materials provided on or in connection with the Services infringe upon your copyright or other intellectual property right, please send the following information to Audigo’s Copyright Agent at copyright@audigolabs.com:
A description of the copyrighted work that you claim has been infringed, including the URL (Internet address) or other specific location on the Services where the material you claim is infringed is located. Include enough information to allow Audigo to locate the material, and explain why you think an infringement has taken place;
A description of the location where the original or an authorized copy of the copyrighted work exists -- for example, the URL (Internet address) where it is posted or the name of the book in which it has been published;
Your address, telephone number, and e-mail address;
A 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;
A statement by you, made under penalty of perjury, that the information in your notice is accurate, and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and
An electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
11. Confidential Information
You acknowledge that Confidential Information (as defined below) is a valuable, special and unique asset of Audigo and agree that you will not disclose, transfer, use (or seek to induce others to disclose, transfer or use) any Confidential Information for any purpose other than using the Services in accordance with these Terms of Service. If relevant, you may disclose the Confidential Information to your authorized employees and agents provided that they are also bound to maintain the confidentiality of Confidential Information. You shall promptly notify Audigo in writing of any circumstances that may constitute unauthorized disclosure, transfer, or use of Confidential Information. You shall use best efforts to protect Confidential Information from unauthorized disclosure, transfer or use. You shall return all originals and any copies of any and all materials containing Confidential Information to Audigo upon termination of this Agreement for any reason whatsoever.
The term “Confidential Information” shall mean any and all of Audigo’s trade secrets, confidential and proprietary information, and all other information and data of Audigo that is not generally known to the public or other third parties who could derive value, economic or otherwise, from its use or disclosure. Confidential Information shall be deemed to include technical data, know-how, research, product plans, products, services, customers, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, strategic and other proprietary and confidential information relating to Audigo or Audigo’s business, operations or properties, including information about Audigo’s staff, users or partners, or other business information disclosed directly or indirectly in writing, orally or by drawings or observation.
12. Disclaimer of Warranties
THE SERVICES IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. AUDIGO MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENT PROVIDED THROUGH THE SERVICES OR THE CONTENT OF ANY SITES LINKED TO THE SERVICES AND ASSUMES NO LIABILITY OR RESPONSIBILITY IN CONTRACT, WARRANTY OR IN TORT FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICES, (III) ANY ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN; AND (IV) EVENTS BEYOND OUR REASONABLE CONTROL.
UNDER NO CIRCUMSTANCES WILL AUDIGO AND AFFILIATES OR THEIR CORPORATE PARTNERS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, ACTUAL, CONSEQUENTIAL, ECONOMIC, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF DATA, LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, SYSTEM FAILURE, FAILURE TO STORE ANY INFORMATION OR OTHER CONTENT MAINTAINED OR TRANSMITTED BY AUDIGO, OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES) ARISING IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU IN THEIR ENTIRETY.
IF, NOTWITHSTANDING THE FOREGOING EXCLUSIONS, IT IS DETERMINED THAT AUDIGO AND AFFILIATES OR THEIR CORPORATE PARTNERS ARE LIABLE FOR DAMAGES, IN NO EVENT WILL THE AGGREGATE LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED THE LOWER OF (I) THE TOTAL FEES PAID BY YOU TO AUDIGO DURING THE SIX MONTHS PRIOR TO THE TIME SUCH CLAIM AROSE OR (II) ONE HUNDRED DOLLARS ($100), TO THE EXTENT PERMITTED BY APPLICABLE LAW.
13. Indemnification
You hereby agree to indemnify, defend, and hold harmless Audigo and its officers, directors, employees, agents, attorneys, insurers, successors and assigns (the “Indemnified Parties”) from and against any and all Liabilities incurred in connection with (i) your use or inability to use the Services, or (ii) your breach or violation of this Agreement; (iii) your violation of any law, or the rights of any user or third party and (iv) any content submitted by you or using your Account to the Services, including, but not limited to the extent such content may infringe on the intellectual rights of a third party or otherwise be illegal or unlawful. You also agree to indemnify the Indemnified Parties for any Liabilities resulting from your use of software robots, spiders, crawlers, or similar data gathering and extraction tools, or any other action you take that imposes an unreasonable burden or loan on our infrastructure. Audigo reserves the right, in its own sole discretion, to assume the exclusive defense and control at its own expense of any matter otherwise subject to your indemnification. You will not, in any event, settle any claim or matter without the prior written consent of Audigo.
14. Dispute Resolution – Arbitration & Class Action Waiver
PLEASE READ THIS SECTION CAREFULLY — IT AFFECTS YOUR LEGAL RIGHTS AND GOVERNS HOW YOU AND AUDIGO CAN BRING CLAIMS AGAINST EACH OTHER. THIS SECTION WILL, WITH LIMITED EXCEPTION, REQUIRE YOU AND Audigo TO SUBMIT CLAIMS AGAINST EACH OTHER TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS.
You agree that, in the event any dispute or claim arises out of or relating to your use of the Services, you will contact us at https://www.audigolabs.com/support and you and Audigo will attempt in good faith to negotiate a written resolution of the matter directly. You agree that if the matter remains unresolved for 30 days after notification (via certified mail or personal delivery), such matter will be deemed a “Dispute” as defined below. Except for the right to seek injunctive or other equitable relief described under the “Binding Arbitration” section below, should you file any arbitration claims, or any administrative or legal actions without first having attempted to resolve the matter by mediation, then you agree that you will not be entitled to recover attorneys' fees, even if you may have been entitled to them otherwise.
Binding Arbitration. You and Audigo agree that any dispute, claim or controversy arising out of or relating to this Agreement or to your use of the Services (collectively “Disputes”) will be settled by binding arbitration, except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights. This means that you and Audigo both agree to waive the right to a trial by jury. Notwithstanding the foregoing, you may bring a claim against Audigo in “small claims” court, instead of by arbitration, but only if the claim is eligible under the rules of the small claims court and is brought in an individual, non-class, and non-representative basis, and only for so long as it remains in the small claims court and in an individual, non-class, and non-representative basis.
Class Action Waiver. You and Audigo agree that any proceedings to resolve Disputes will be conducted on an individual basis and not in a class, consolidated, or representative action. This means that you and Audigo both agree to waive the right to participate as a plaintiff as a class member in any class action proceeding. Further, unless you and Audigo agree otherwise in writing, the arbitrator in any Dispute may not consolidate more than one person’s claims and may not preside over any form of class action proceeding.
Arbitration Administration and Rules. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution’ section. (The AAA Rules are available at http://www.adr.org or by calling the AAA at 1-800-778-7879).
Arbitration Process. A party who desires to initiate the arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of [California] and will be selected by the parties from the AAA’s roster of arbitrators with relevant experience. If the parties are unable to agree upon an arbitrator within seven days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with AAA Rules.
Arbitration Location and Procedure. Unless you and Audigo agree otherwise, the seat of the arbitration shall be in [San Francisco, California]. If your claim does not exceed USD$10,000, then the arbitration will be conducted solely on the basis of documents you and Audigo submit to the arbitrator, unless you request a hearing and the arbitrator then determines that a hearing is necessary. If your claim exceeds USD$10,000, your right to a hearing will be determined by AAA Rules. Subject to AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration. Hearings may be conducted by telephone or video conference, if requested and agreed to by the parties.
Arbitrator’s Decision and Governing Law. The arbitrator shall apply [California] law consistent with the Federal Arbitration Act and applicable statutes of limitations, and shall honor claims of privilege recognized by law. The arbitrator will render an award within the timeframe specified in the AAA Rules. Judgment on the arbitration may be entered in any court having jurisdiction thereof. Any award of damages by an arbitrator must be consistent with the “Disclaimers and Limitations of Liability” section above. The arbitrator may award declaratory or injunctive relief in favor of the claimant only to the extent necessary to provide relief warranted by the claimant’s individual claim.
Fees. Each party’s responsibility to pay the arbitration filing, administrative and arbitrator fees will depend on the circumstances of the arbitration and are set forth in the AAA Rules.
15. Governing Law
Except as provided in Section 14 or expressly provided in writing otherwise, this Agreement and your use of the Services will be governed by, and will be construed under, the laws of the State of [California], without regard to choice of law principles. This choice of law provision is only intended to specify the use of California law to interpret this Agreement.
16. No Agency; No Employment
No agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by this Agreement.
17. General Provisions
Failure by Audigo to enforce any provision(s) of this Agreement will not be construed as a waiver of any provision or right. This Agreement constitutes the complete and exclusive agreement between you and Audigo with respect to its subject matter and supersedes and governs any and all prior agreements or communications. The provisions of this Agreement are intended to be interpreted in a manner which makes them valid, legal, and enforceable. Except for the “Class Action Waiver” in Section 14, in the event any provision is found to be partially or wholly invalid, illegal or unenforceable, (i) such provision shall be modified or restructured to the extent and in the manner necessary to render it valid, legal, and enforceable or, (ii) if such provision cannot be so modified or restructured, it shall be excised from the Agreement without affecting the validity, legality or enforceability of any of the remaining provisions. This Agreement may not be assigned or transferred by you without our prior written approval. We may assign or transfer this Agreement without your consent, including but not limited to assignments: (1) to a parent or subsidiary, (2) to an acquirer of assets, or (3) to any other successor or acquirer. Any assignment in violation of this section shall be null and void. This Agreement will inure to the benefit of Audigo, its successors and assigns.
18. Changes to this Agreement and the Services
Audigo reserves the right, at its sole and absolute discretion, to change, modify, add to, supplement, suspend, discontinue, or delete any of the terms and conditions of this Agreement (including these Terms of Service and Privacy Policy) and review, improve, modify or discontinue, temporarily or permanently, the Services or any content or information through the Services at any time, effective with or without prior notice and without any liability to Audigo. Audigo will endeavor to notify you of material changes by email but will not be liable for any failure to do so. If any future changes to this Agreement are unacceptable to you or cause you to no longer be in compliance with this Agreement, you must terminate, and immediately stop using, the Services. Your continued use of the Services following any revision to this Agreement constitutes your complete and irrevocable acceptance of any and all such changes. Audigo may also impose limits on certain features or restrict your access to part or all of the Services without notice or liability.
19. No Rights of Third Parties
None of the terms of this Agreement are enforceable by any persons who are not a party to this Agreement.
20. Notices and Consent to Receive Notices Electronically
You consent to receive any agreements, notices, disclosures and other communications (collectively, “Notices”) to which this Agreement refers electronically including without limitation by e-mail or by posting Notices on this Site. You agree that all Notices that we provide to you electronically satisfy any legal requirement that such communications be in writing. Unless otherwise specified in this Agreement, all notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or email; or the day after it is sent, if sent for next day delivery by a recognized overnight delivery service.
21. Contacting Us
If you have any questions about these Terms of Service or about the Services, please contact us by email at copyright@audigolabs.com or by mail to Audigo Labs, Inc., 380 Alabama St. San Francisco, CA 94110.
Audigo Mobile App End User License Agreement (Apple)
Last updated August 20, 2021
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE USING THE AUDIGO APPLICATION (THE “LICENSED APPLICATION”) AND THE SERVICES PROVIDED BY AUDIGO LABS, INC. (THE “SERVICES”). THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT (THIS “AGREEMENT”), THE PRIVACY POLICY AVAILABLE AT https://www.audigolabs.com/privacy, AND THE TERMS OF SERVICE AVAILABLE AT www.audigolabs.com/legal GOVERN USE OF THE LICENSED APPLICATION AND THE SERVICES UNLESS YOU AND AUDIGO LABS, INC. (“AUDIGO”) HAVE EXECUTED A SEPARATE AGREEMENT. IN THE EVENT OF A CONFLICT BETWEEN THE TERMS OF SERVICE AND THIS AGREEMENT, THIS AGREEMENT SHALL GOVERN.
Audigo is willing to license, not sell, the Licensed Application to you only upon the condition that you accept all the terms contained in this Agreement, including the Privacy Policy and the Terms of Service. By clicking on the “I accept” button, or similar, below or by using the Licensed Application, you indicate that you understand this Agreement and accept all of its terms. If you do not accept all the terms of this Agreement, then Audigo is unwilling to license the Licensed Application to you.
This Agreement is entered into between you and Audigo. Apple, Inc. (“Apple”) is not a party to this Agreement and shall have no obligations with respect to the Licensed Application. Audigo, not Apple, is solely responsible for the Licensed Application and the content thereof as set forth hereunder, including, but not limited to any claims that may arise therefrom. However, Apple and Apple’s subsidiaries are third party beneficiaries of this Agreement. Upon your acceptance of this Agreement, Apple shall have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof. This Agreement incorporates by reference the Licensed Application End User License Agreement published by Apple (located online at http://www.apple.com/legal/itunes/appstore/dev/stdeula/), for purposes of which, you are the “the end-user” and Audigo is the “Application Provider." In the event of a conflict in the terms of the Licensed Application End User License Agreement and this Agreement, the terms of this Agreement shall control. Apple and the Apple logo are trademarks of Apple Inc.
Audigo reserves the right, at its sole discretion, to modify, discontinue or terminate the Licensed Application or to modify this Agreement, at any time and without prior notice. If Audigo modifies this Agreement, Audigo will post the modification at www.audigolabs.com/legal. Audigo will endeavor to notify you of any changes by email, but will not be liable for any failure to do so. Audigo will also update the “Effective Date” at the top of this End User License Agreement. By continuing to access or use the Licensed Application after Audigo has posted a modification on the Website or provided you with notice of a modification, you are indicating that you agree to be bound by the modified Agreement. If the modified Agreement is not acceptable to you, your only recourse is to cease using the Licensed Application.
a. Ownership; License
Audigo shall own and retain ownership in the Licensed Application, and all intellectual property therein. Contingent upon your compliance with the terms and conditions of this Agreement, Audigo hereby grants to you a limited, non-transferable, non-exclusive, non-sublicensable, revocable license (the “License”) to use the Licensed Application on any iPhone, iPad or iPod touch (collectively, a “Device”) that you own or control and as permitted by the Usage Rules set forth in Section 9.b. of the App Store Terms and Conditions available at http://www.apple.com/legal/itunes/us/terms.html#APPS (the "Usage Rules"). This license does not allow you to use the Licensed Application on any Device that you do not own or control, and you may not distribute or make the Licensed Application available over a network where it could be used by multiple Devices at the same time. You may not rent, lease, lend, sell, redistribute or sublicense the Licensed Application. You may not copy (except as expressly permitted by this license and the Usage Rules), modify, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Licensed Application, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law). Any attempt to do so is a violation of the rights of Audigo and its licensors. If you breach this restriction, you may be subject to prosecution and damages. The terms of the license will govern any upgrades provided by Audigo that replace and/or supplement the original Licensed Application, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern. The trademarks, logos, and service marks displayed on the Licensed Application (collectively, the "Trademarks") are the registered and unregistered trademarks of Audigo, Audigo’s licensors and suppliers, and/or others. Nothing contained in this Agreement should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark(s) without the express written permission of Audigo, Audigo’s licensors or suppliers, or the third-party owner of any such Trademark.
b. Consent to Use of Data
Audigo’s use of your personal information shall be governed by its Privacy Policy, available at https://www.audigolabs.com/privacy. By using the Licensed Application, you indicate your understanding of and acceptance of the Privacy Policy.
c. Termination
The License is effective until terminated by you or Audigo. Your rights under this License will terminate automatically without notice from Audigo if you fail to comply with any term(s) of this Agreement. Upon termination of the License, you shall cease all use of the Licensed Application, and destroy all copies, full or partial, of the Licensed Application.
d. Username; Password
You are responsible for maintaining the confidentiality of any user ID and/or password used by you in connection with the Licensed Application. You expressly agree not to share your user ID and/or password with any other person. You are solely responsible for all activities that occur under your user ID and/or password, and you agree to notify Audigo immediately of any unauthorized use of your user ID and/or password or any other breach of security related to the Licensed Application. If you are concerned that your password has been compromised, or you have lost your Device, it is your responsibility to change your password, notify Audigo immediately, and cancel any unauthorized uses or payments. AUDIGO WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE ARISING FROM YOUR FAILURE TO SAFEGUARD YOUR USER ID, PASSWORD, DEVICE, OR TO COMPLY WITH THIS SECTION.
e. Social Media and Networking Sites
As part of the functionality of the Licensed Application, you may login through online accounts you may have with third party service providers (each such account, a “Third Party Account”) by either: (i) providing your Third Party Account login information through the Licensed Application; or (ii) allowing Audigo to access your Third Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third Party Account. You represent that you are entitled to disclose your Third Party Account login information to Audigo and/or grant Audigo access to your Third Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Third Party Account and without obligating Audigo to pay any fees or making Audigo subject to any usage limitations imposed by such third party service providers. By granting Audigo access to any Third Party Accounts, you understand that (i) Audigo may access, make available and store (if applicable) any content that you have provided to and stored in your Third Party Account (the “SNS Content”) so that it is available on and through the Licensed Application via your Account, including without limitation any friend, contacts or following/followed lists, and (ii) Audigo may submit and receive additional information to your Third Party Account as indicated herein. Unless otherwise specified in this Agreement, all SNS Content, if any, shall be considered to be governed by Section (b) of this Agreement. Depending on the Third Party Accounts you choose and subject to the privacy settings that you have set in such Third Party Accounts, personally identifiable information that you post to your Third Party Accounts may be available on and through the Licensed Application. Please note that if a Third Party Account or associated service becomes unavailable or Audigo’s access to such Third Party Account is terminated by the third party service provider, then SNS Content may no longer be available on and through the Licensed Application. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD PARTY SERVICE PROVIDERS. Audigo makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or non-infringement, and Audigo is not responsible for any SNS Content.
f. Use of Licensed Application
Neither Audigo, nor any of its content providers, guarantees the availability, accuracy, completeness, reliability, or timeliness of information or location data displayed by the Licensed Application.
You understand that by using the Licensed Application, you may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that the results of any search or entering of a particular URL may automatically and unintentionally generate links or references to objectionable material. Nevertheless, you agree to use the Licensed Application at your sole risk and that Audigo shall not have any liability to you for content that may be found to be offensive, indecent, or objectionable.
You agree that the Licensed Application may contain proprietary content, information and material that is protected by applicable intellectual property and other laws, including but not limited to copyright, and that you will not use such proprietary content, information or materials in any way whatsoever except for permitted use of the Licensed Application.
The Licensed Application is not available in all languages or in all countries. Audigo makes no representation that the Licensed Application is appropriate or available for use in any particular location. To the extent you choose to access Licensed Application, you do so at your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable international, foreign, national, state, or local laws.
Audigo, and its licensors, reserve the right to change, suspend, remove, or disable access to any portion(s) of or the entire Licensed Application at any time without notice. In no event will Audigo be liable for the removal of or disabling of access to any portion of the Licensed Application. Audigo may also impose limits on the use of or access to any portion(s) of the Licensed Application, in any case and without notice or liability.
g. Use with Your Mobile Device
The Internet connection required to use many of the Services, and any associated charges (e.g. mobile data expenses) incurred by your use of the Services are your exclusive responsibility and made solely at your expense. Transmitting and receiving real-time updates to and from the Services, requires an online (e.g. Wi-Fi, 3G, 4G) connection between your cellular device and the Internet. The expenses of such connection are as prescribed by the agreement between you and your communication service provider (such as your cellular company), and according to its applicable terms of payment.
h. Representations and Warranties
By using the Licensed Application, you expressly represent and warrant that (i) you have reviewed the Usage Rules, (ii) you have the right, authority and capacity to enter this Agreement and abide by its terms, (iii) your use of the Licensed Application is for your sole, personal, non-commercial use, (iv) 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, (v) you are not listed on any U.S. Government list of prohibited or restricted parties, and (vi) you are at least 18 years of age. If you reside in a jurisdiction which restricts the use of the Licensed Application because of age, or restricts the ability to enter into agreements such as this one due to age, you must abide by such age limits and you must not use the Licensed Application. You may not authorize others to use your user account, and you may not assign or otherwise transfer your user account to any other person or entity. When using the Licensed Application you agree to comply with all applicable laws from your home nation, and the country, state and city in which you are present while using the Licensed Application.
You may only access the Licensed Application using authorized means. It is your responsibility to have internet access via a Device and to ensure that you download the correct Licensed Application for your Device. Audigo reserves the right to terminate this Agreement should you be using the Licensed Application with an incompatible or unauthorized Device.
By using the Licensed Application, you agree that:
You will only use the Licensed Application for lawful purposes; you will not use the Licensed Application for sending or storing any unlawful material or for fraudulent purposes.
You will not use the Licensed Application to cause nuisance, annoyance or inconvenience.
You will not impair the proper operation of the network.
You will not try to harm or disrupt the integrity of the Licensed Application in any way whatsoever.
You will not copy, reverse engineer, decompile, or distribute the Licensed Application or other content without written permission from Audigo.
You will only use the Licensed Application for your own use and will not resell it to a third party.
You will not remove any titles, trademarks or trade names, copyright notices, legends, or other proprietary markings on the Licensed Application.
You will keep secure and confidential your account password or any identification we provide you which allows access to the Licensed Application.
You will provide Audigo with whatever proof of identity we may reasonably request.
i. Third Party Services
The Licensed Application may display, include or make available content, data, information, applications or materials from third parties or provide links to certain third party web sites, products, or services (collectively, "Third Party Materials"). By using the Licensed Application, you acknowledge and agree that Audigo is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials. Audigo does not warrant or endorse and does not assume and will not have any liability or responsibility to you or any other person for any Third Party Materials. Third Party Materials are provided solely as a convenience to you. You must comply with all applicable third party terms of agreement when using Third Party Materials.
j. NO WARRANTY
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE LICENSED APPLICATION IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED APPLICATION AND THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE", WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND AUDIGO HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE LICENSED APPLICATION AND ANY SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. AUDIGO DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE LICENSED APPLICATION, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE LICENSED APPLICATION WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE LICENSED APPLICATION OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE LICENSED APPLICATION OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY AUDIGO OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE LICENSED APPLICATION OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
k. Limitation of Liability
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL AUDIGO BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE LICENSED APPLICATION, OR ARISING OUT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY THIRD PARTY SERVICE PROVIDER, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF AUDIGO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. YOU EXPRESSLY WAIVE AND RELEASE ANY AND ALL RIGHTS AND BENEFITS UNDER SECTION 1542 OF THE CIVIL CODE OF THE STATE OF CALIFORNIA (OR ANY ANALOGOUS LAW OF ANY OTHER JURISDICTION), WHICH READS AS FOLLOWS: "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 foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
l. Export Law
You may not use or otherwise export or re-export the Licensed Application except as authorized by United States law and the laws of the jurisdiction in which the Licensed Application was obtained. In particular, but without limitation, the Licensed Application may not be exported or re-exported (a) into any U.S. 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 Denied Person's List or Entity List. By using the Licensed Application, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the Licensed Application for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.
m. Government Users
The Licensed Application and related documentation are "Commercial Items," as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
n. General Provisions
This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to or application of conflicts of law rules or principles. You may not assign or transfer this Agreement or any rights granted hereunder, by operation of law or otherwise, without Audigo’s prior written consent, and any attempt by you to do so, without such consent, will be void and of no effect. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. All notices or approvals required or permitted under this Agreement will be in writing and delivered by confirmed facsimile transmission, by overnight delivery service, or by certified mail, and in each instance will be deemed given upon receipt. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by authorized representatives of both parties. If any provision of this Agreement is held to be unenforceable or invalid, that provision will be enforced to the maximum extent possible and the other provisions will remain in full force and effect. This Agreement, the Privacy Policy and the Terms of Service are the complete and exclusive understanding and agreement between the parties regarding its subject matter, and supersedes all proposals, understandings or communications between the parties, oral or written, regarding its subject matter, unless you and Audigo have executed a separate agreement.
o. Contact Information
Should you have any questions about this Agreement or the Licensed Application, you may contact Audigo by email at info@audigolabs.com or deliver written mail to the following address: Audigo Labs, Inc., 380 Alabama St, #7, San Francisco, CA 94110.
Audigo Microphone End User License Agreement
By using the products, including without limitation the Audigo Intelligent Smart Wireless Microphone and related accessories (the “Product” or “Products”), or any software associated with or embedded in the Products (the “Product Software”), you agree to the terms of this End User License Agreement (“EULA”) between you and Audigo Labs, Inc. (“Audigo Labs” or “we”). IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU MAY NOT USE THE PRODUCTS OR PRODUCT SOFTWARE. Your use of (a) the website located at https://www.audigolabs.com/ and any related sub-domains (each, a “Site”), (b) services through the Site (and any updates thereto) (“Site Services”), and (c) certain software that may be downloaded to your mobile device (and any updates thereto) (“Licensed Application”) is governed by the applicable terms of service and any other applicable license agreements located at https://www.audigolabs.com/legal . Your purchase of the Product (excluding the Product Software) is governed by the Audigo Labs limited warranty, the terms of which are provided at https://www.audigolabs.com/warranty. This EULA does not govern your use of the Site, Site Services, or Licensed Application, or your purchase of the Product (excluding the Product Software).
This EULA governs your access to, and use of, the Product Software. This EULA gives you specific legal rights, and you may also have other legal rights in addition, which vary from jurisdiction to jurisdiction. The disclaimers, exclusions, and limitations of liability under this EULA will not apply to the extent prohibited by applicable law. Some jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of incidental or consequential damages or other rights, so those provisions of this EULA may not apply to you.
THIS IS A LEGAL AGREEMENT. BY ACCESSING AND USING THE PRODUCT SOFTWARE, YOU ARE ACCEPTING AND AGREEING TO THIS EULA ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT IN CONNECTION WITH THE ACCESS. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ACCEPT AND AGREE TO THIS EULA ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT. YOU REPRESENT THAT YOU ARE OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OR RESIDENCE TO USE OR ACCESS THE PRODUCT SOFTWARE AND TO ENTER INTO THIS EULA. IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS OF THESE TERMS, YOU SHOULD CEASE ACCESSING OR USING THE PRODUCT SOFTWARE.
AS DESCRIBED BELOW, YOU ARE CONSENTING TO THE AUTOMATIC SOFTWARE UPDATE OF THE PRODUCT SOFTWARE. IF YOU DO NOT AGREE, YOU SHOULD NOT USE THE PRODUCT SOFTWARE.
1. License
Subject to the terms of this EULA, Audigo Labs grants to you a limited and nonexclusive license (without the right to sublicense) to execute and use one (1) copy of the Product Software, in executable object code form only, solely on the Product that you own or control and solely for use in conjunction with the Product.
2. Restrictions
You agree not to, and you will not permit others to, (a) license, sell, rent, lease, assign, distribute, transmit, host, outsource, disclose or otherwise commercially exploit the Product Software or make the Product Software available to any third party, (b) copy or use the Product Software for any purpose other than as permitted in Section 1, (c) use any portion of the Product Software on any device or computer other than the Product that you own or control, (d) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Product Software, or (e) modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Product Software (except to the extent applicable laws specifically prohibit such restriction for interoperability purposes, in which case you agree to first contact Audigo Labs and provide Audigo Labs an opportunity to create such changes as are needed for interoperability purposes). You may not release the results of any performance or functional evaluation of any of the Product Software to any third party without prior written approval of Audigo Labs for each such release.
3. Automatic Software Updates
Audigo Labs may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Product Software and related services (“Updates”). These may be automatically installed without providing any additional notice or receiving any additional consent. You consent to this automatic update. If you do not want such Updates, your remedy is to stop using the Product. If you do not cease using the Product, you will receive Updates automatically. You acknowledge that you may be required to install Updates to use the Product and the Product Software and you agree to promptly install any Updates Audigo Labs provides. Your continued use of the Product is your agreement to this EULA.
4. Ownership
The Product Software and all worldwide copyrights, trade secrets, and other intellectual property rights therein are the exclusive property of Audigo Labs and its licensors. Audigo Labs and its licensors reserve all rights in and to the Product Software not expressly granted to you in this EULA. The Product Software (and all copies thereof) is licensed to you, not sold, under this EULA. There are no implied licenses in this EULA. All suggestions or feedback provided by you to Audigo Labs with respect to the Product Software shall be Audigo Labs’ property. Audigo Labs may use, copy, modify, publish, or redistribute the submission and its contents for any purpose and in any way without any compensation to you. You also agree that Audigo Labs does not waive any rights to use similar or related ideas previously known to Audigo Labs, developed by its employees, or obtained from other sources.
5. Open Source
Certain items of software included with the Product Software may be subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software may be owned by third parties. The Open Source Software is not subject to the terms and conditions of this EULA. Instead, each item of Open Source Software is licensed under the terms of the end user license that accompanies such Open Source Software. Nothing in this EULA limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, Audigo Labs makes such Open Source Software, and Audigo Labs’ modifications to that Open Source Software, available by written request to Audigo Labs at the email or mailing address listed below.
6. Term and Termination
This EULA and the license granted hereunder are effective on the date you first use the Product Software or Product and shall continue for as long as you own the Product, unless this EULA is terminated under this section. Audigo Labs may terminate this EULA at any time if you fail to comply with any term(s) hereof. You may terminate this EULA effective immediately upon written notice to Audigo Labs. Upon termination of this EULA, the license granted hereunder will terminate and you must stop all use of the Product Software, but the terms of Sections 2 through 18 (inclusive) will remain in effect, after any such termination.
7. Warranty Disclaimer
NOTWITHSTANDING ANYTHING TO THE CONTRARY AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AUDIGO LABS PROVIDES THE PRODUCT SOFTWARE “AS-IS” AND DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. AUDIGO LABS DOES NOT GUARANTEE ANY SPECIFIC RESULTS FROM THE USE OF THE PRODUCT SOFTWARE. AUDIGO LABS MAKES NO WARRANTY THAT THE PRODUCT SOFTWARE WILL BE UNINTERRUPTED, FREE OF VIRUSES OR OTHER HARMFUL CODE, TIMELY, SECURE, OR ERROR-FREE.
YOU USE ALL PRODUCT INFORMATION (AS DEFINED BELOW), THE PRODUCT SOFTWARE, AND THE PRODUCT AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR (AND AUDIGO LABS DISCLAIMS) ANY AND ALL LOSS, LIABILITY, OR DAMAGES RESULTING FROM YOUR USE OF THE PRODUCT INFORMATION, PRODUCT SOFTWARE, OR PRODUCT.
8. Limitation of Liability
Nothing in this EULA and in particular within this "Limitation of Liability" clause shall attempt to exclude liability that cannot be excluded under applicable law.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN ADDITION TO THE ABOVE WARRANTY DISCLAIMERS, IN NO EVENT WILL (A) AUDIGO LABS BE LIABLE FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY DAMAGES FOR LOST DATA OR LOST PROFITS, ARISING FROM OR RELATING TO THE PRODUCTS OR PRODUCT SOFTWARE, EVEN IF AUDIGO LABS KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) AUDIGO LABS’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THE PRODUCTS AND PRODUCT SOFTWARE, WHETHER IN CONTRACT OR TORT OR OTHERWISE, EXCEED THE FEES ACTUALLY PAID BY YOU TO AUDIGO LABS OR AUDIGO LABS’S AUTHORIZED RESELLER FOR THE PRODUCT AT ISSUE IN THE PRIOR 12 MONTHS (IF ANY). THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. AUDIGO LABS DISCLAIMS ALL LIABILITY OF ANY KIND OF AUDIGO LABS’S LICENSORS AND SUPPLIERS.
9. Confidentiality
“Confidential Information” shall mean the Product Software and all other information disclosed to you that Audigo Labs characterizes as confidential at the time of its disclosure either in writing or orally, except for information which you can demonstrate: (a) is previously rightfully known to you without restriction on disclosure; (b) is or becomes, from no act or failure to act on your part, generally known in the relevant industry or public domain; (c) is disclosed to you by a third party as a matter of right and without restriction on disclosure; or (d) is independently developed by you without access to the Confidential Information. You shall use your best efforts to preserve and protect the confidentiality of the Confidential Information at all times, both during the term hereof and for a period of at least 3 years after termination of this EULA, provided, however, that any source code you receive shall be held in confidence in perpetuity. You shall not disclose, disseminate or otherwise publish or communicate Confidential Information to any person, firm, corporation or other third party without the prior written consent of Audigo Labs. You shall not use any Confidential Information other than in the course of the activities permitted hereunder. You shall notify Audigo Labs in writing immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this EULA, and will cooperate with Audigo Labs in every reasonable way to regain possession of Confidential Information and prevent any further unauthorized use. If you are legally compelled to disclose any of the Confidential Information, then, prior to such disclosure, you will (i) immediately notify Audigo Labs prior to such disclosure to allow Audigo Labs an opportunity to contest the disclosure, (ii) assert the privileged and confidential nature of the Confidential Information, and (iii) cooperate fully with Audigo Labs in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. In the event such protection is not obtained, you shall disclose the Confidential Information only to the extent necessary to comply with the applicable legal requirements.
10. For U.S. Government End Users
The Product Software is a “commercial item,” as that term is defined at 48 C.F.R. 2.101 (OCT 1995), and more specifically is “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (SEPT 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995), the Product Software is provided to U.S. Government End Users only as a commercial end item and with only those rights as are granted to all other customers pursuant to the terms and conditions herein.
11. Export Compliance
The Product Software and related technology may be subject to U.S. export control laws or to export or import regulations in other countries. You agree to strictly comply with all such laws and regulations and acknowledge that you have the responsibility to obtain authorization to export, re-export, or import the Product Software and related technology, as may be required. You will indemnify and hold Audigo Labs harmless from any and all claims, losses, liabilities, damages, fines, penalties, costs and expenses (including attorney’s fees) arising from or relating to any breach by you of your obligations under this section.
12. Governing Law; Venue
The courts in some countries will not apply California law to some types of disputes. If you reside in one of those countries, then where California law is excluded from applying, your country’s laws will apply to such disputes related to these terms. Otherwise, you agree that this EULA, and any claim, dispute, action, cause of action, issue, or request for relief relating to this EULA, will be governed by the laws of California, without giving effect to any conflicts of laws principles that require the application of the laws of a different jurisdiction. Any action or proceeding relating to this EULA must be brought in a federal or state court located in Santa Clara County, California and each party irrevocably submits to the jurisdiction and venue of any such court in any such claim or dispute, except that Audigo Labs may seek injunctive relief in any court having jurisdiction to protect its intellectual property or Confidential Information.
13. Assignment
Neither the rights nor the obligations arising under this EULA are assignable by you, and any such attempted assignment shall be void and without effect.
14. Notices.
Any notice to you may be provided by email to the address that you registered with Audigo Labs.
15. Severability
If any provision of this EULA is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
16. Waiver
All waivers by Audigo Labs will be effective only if in writing. Any waiver or failure by Audigo Labs to enforce any provision of this EULA on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
17. General
The Product Software is deemed irrevocably accepted upon your use of the Product Software or Product. Audigo Labs will have no responsibility to provide maintenance or support services with respect to the Product Software. The parties are independent contractors.
You acknowledge that the Product Software contains valuable trade secrets and proprietary information of Audigo Labs, that any actual or threatened breach of Section 2 (Restrictions) of this EULA will constitute immediate, irreparable harm to Audigo Labs for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach.
The headings of Sections of this EULA are for convenience and are not to be used in interpreting this EULA.
Except as otherwise provided in this section, no amendment to this EULA will be valid unless it is in writing hand-signed by the parties.
Questions or Additional Information. If you have questions regarding this EULA, please Audigo at info@audigolabs.com