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Terms of Service

Revised: 02/2013

BY INSTALLING OR USING THE SOFTWARE OR THE SERVICE, YOU ("YOU" OR "CUSTOMER") ARE ENTERING INTO AN AGREEMENT WITH MEDIA GOBBLER, INC. ("GOBBLER") AND AGREE TO BE BOUND BY THESE TERMS OF USE ("TERMS OF USE"). IF YOU DO NOT AGREE TO ALL OF THE TERMS OF USE, DO NOT DOWNLOAD THE SOFTWARE OR OTHERWISE USE THE SERVICE. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER ENTITY, YOU REPRESENT THAT YOU ARE THE EMPLOYEE OR AGENT OF SUCH COMPANY (OR OTHER ENTITY) AND YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF SUCH COMPANY (OR OTHER ENTITY).

1. Service. The Gobbler service is a proprietary audio file storage and management system that enables customers to store, manage, organize and transfer their audio files (the "Service").

2. Registration and Account Information. Customer must register and create an account with Gobbler as a condition to using the Service. In order to register with Gobbler, Customer must provide complete and accurate information as requested in the registration process. Customer will maintain and update all information provided by Customer during registration as required to keep it current, complete and accurate. If Customer provides any inaccurate information or fails to keep such information current, complete and accurate, Gobbler may terminate Customer's account and Customer's right to use the Service. Customer shall maintain the security and confidentiality of all passwords issued to Customer. Customer agrees not to transfer or share Customer's user name or password, or lend or otherwise transfer Customer's use of or access to the Service, to anyone. Customer is responsible for any and all activities that occur under Customer's account. Customer agrees to immediately notify Gobbler of any unauthorized use of Customer's account or any other breach of security related to Customer's account or the Service.

3. Grant of Rights

3.1 Granted Rights. Subject to these Terms of Use, Gobbler hereby grants to Customer, and Customer hereby accepts, a limited nonexclusive, nontransferable, nonassignable, nonsublicenseable right during the Term to use the Service, and any software provided in connection with such Service (the "Software"), solely for Customer's personal or internal business purposes and solely for its intended purpose.

3.2 Reserved Rights. The Service involves valuable proprietary rights of Gobbler. No title to or ownership of the Software, the Service or any proprietary rights associated therewith is transferred by these Terms of Use to Customer or any third party. All rights not expressly granted in these Terms of Use are reserved by Gobbler.

3.3 General Restrictions and Limitations on Customer. Customer may not license, sublicense, sell, resell, rent, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service, or any portion or component thereof, or any rights granted in these Terms of Use, except as expressly permitted herein and subject to the terms set forth in these Terms of Use. Customer may not reverse engineer, disassemble, or decompile the Software or otherwise attempt to discover the source code of the Software. Customer may not: (i) remove any copyright, trademark or other proprietary notices from the Service, or any component thereof; (ii) use the Service for commercial time-sharing or in any manner for anyone other than Customer for its own internal business purposes; (iii) rent or lease the Service or permit access to or use of the Service by anyone other than Customer and its employees; (iv) develop or assist with the development of a product or service using similar ideas, features, functions, or graphics of the Service; (v) create modifications to or derivative works of the Service or any component thereof; (vi) use or attempt to use or access any Gobbler services other than the Service specifically subscribed to by Customer under these Terms of Use or pursuant to another written agreement with Gobbler; or (vii) copy any ideas, features, functions, or graphics of the Service. Customer shall have no right to receive any source code or source documentation with respect to the Software.

4. Obligations of Customer

4.1 Customer Systems. Customer is solely responsible for providing and maintaining, at its own expense, all equipment, facilities and services necessary to access and use the Service, including, without limitation, computer hardware and software, modems, telephone service and Internet access.

4.2 Customer Content. Customer is solely responsible for all Customer audio files, text, graphics, data, documents, information, comments, and other content or materials of any kind uploaded, posted, stored, hosted, transferred or otherwise made available on or through the Service or the Gobbler website (the "Customer Content"), including without limitation the accuracy, quality, integrity, completeness, legality, reliability, appropriateness, noninfringement and intellectual property ownership of such Customer Content. Gobbler shall not be responsible or liable in any manner for such Customer Content, or for the deletion, correction, destruction, damage, or loss thereof. You use the Service at your own risk. Customer shall ensure, and represents and warrants, that none of the Customer Content:

(i) infringes upon or violates any third party's copyright, trademark or other intellectual property rights, rights of publicity, rights of privacy, contract or other rights;

(ii) is defamatory, obscene, pornographic, indecent, harassing, abusive, threatening, inflammatory, fraudulent; or otherwise objectionable, and that it does not constitute child pornography, relate to bestiality, or depict non-consensual sex acts;

(iii) violates any applicable law, rule or regulation; or

(iv) would otherwise create liability for Gobbler or cause any harm to anyone.

Although Gobbler has no obligation to screen, edit or monitor any of the Customer Content, Gobbler reserves the right, and has absolute discretion, to remove, screen or edit any Customer Content at any time and for any reason without notice. Customer is solely responsible for creating additional backup copies of and replacing any Customer Content at Customer's sole cost and expense. Gobbler reserves the right to delete or block access to any Customer Content at any time in its sole discretion, including if it receives any notices or otherwise believes that such Customer Content may be in violation of applicable law or these Terms of Use or may otherwise violate the rights of, or cause any harm or liability of any kind to, Gobbler or any third party. Gobbler has the right, from time to time, to impose storage limits and limits on file size at any time upon notice to Customer, and Customer shall make sure that the Customer Content does not exceed such specified storage or file size limits.

4.3 Limited License to Customer Content. You retain copyright and any other rights you already hold in your Customer Content, except as otherwise specifically provided in this Agreement. However, Gobbler needs certain rights to store, transmit, adapt and otherwise use the Customer Content you provide in order to provide you with the Service. Therefore, by making your Customer Content available for uploading, posting, hosting or displaying through the Service, you grant to Gobbler a worldwide, royalty-free, non-exclusive, sublicensable license to reproduce, adapt, modify, translate, publish, transfer, display, perform, store, distribute and otherwise use the Customer Content, solely for the purpose of enabling Gobbler to provide the Service. This license in no way affects the private nature of information you post. You may terminate this license with respect to any particular Customer Content posted to the Gobbler website by deleting the information from the Service, except that in the event that another party using the Service has saved the Customer Content and is storing it through the Service, then the license shall continue as needed to continue to provide the Service to such party. Unless the license granted by you to Gobbler is terminated in accordance with these Terms of Use, such license will be perpetual and irrevocable.

4.4 Customer Conduct. You agree to use the Service only for purposes that are permitted by these Terms of Use and any applicable law, rule or regulation. You agree not to i) access or attempt to access the Service by any means other than through the interface that is provided by Gobbler; (ii) engage in any activity that interferes with or disrupts the Service (or the servers and networks which are connected to the Service); or (iii) violate the security or integrity of any network, computer or communications system, software application, or network or computing device related to the Service or the Gobbler website.

4.5 Compliance with Laws. In using the Service, Customer shall comply with all applicable laws, rules and regulations.

4.6 Enforcement of Customer Content and Conduct Rules. Enforcement of the user content or conduct rules set forth in these Terms of Use is solely at Gobbler's discretion, and failure to enforce such rules in some instances does not constitute a waiver of our right to enforce such rules in other instances. In addition, these rules do not create any private right of action on the part of any third party or any reasonable expectation that the Service will not contain any content that is prohibited by such rules.

4.7 Customer Indemnity. Customer shall defend, indemnify, and hold Gobbler harmless from and against all third party claims, actions, proceedings, damages, costs, liabilities, losses and expenses (including, but not limited to, reasonable attorney fees) arising out of or related to: (i) the Customer Content; (ii) Customer's misuse of the Service; or (iii) any violation by Customer of applicable laws, rules or regulation.

5. Privacy Policy. Gobbler's Privacy Policy https://www.gobbler.com/policy/privacy describes its policies with respect to the collection and use of personal information in connection with the Service.

6. Intellectual Property Ownership

6.1 Gobbler Rights. As between the parties, Gobbler owns all right, title and interest in and to the Service, all proprietary processes and technologies relating thereto (the "Technology"), and all intellectual property rights therein, including, without limitation, all modifications, updates and derivative works relating to the Service and the Technology. All suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Customer or any third party to Gobbler related to Gobbler, the Service or any of Gobbler's other products or services (collectively referred to as "Contributions"), shall be owned by Gobbler, Customer shall not be entitled to any compensation in connection therewith, and Customer hereby assigns to Gobbler all intellectual property rights and other rights in or to any and all Contributions. The Gobbler name and logo, and any other trademarks or service marks used by Gobbler in connection with the Service are trademarks of Gobbler, and no right or license is granted to use them. Except as expressly set forth herein, no additional license, grant, or working right is granted or implied by these Terms of Use.

6.2 Customer Rights. As between the parties, Customer owns all right, title and interest in and to the Customer Content and all intellectual property rights therein, including, without limitation, all modifications, updates and derivatives works relating thereto.

7. Confidentiality. Each party agrees not to use or disclose to third parties any Confidential Information of the other party, except that Gobbler may use and disclose Customer's Confidential Information as necessary to carry out the Service, including to employees, service providers and others who assist Gobbler in providing the Service. Notwithstanding the foregoing, either party may disclose the other party's Confidential Information in response to a judicial or governmental order, provided that such party shall: (i) provide the other party at least thirty (30) days prior notice of any intended disclosure; and (ii) assist the other party in obtaining a protective order if requested. Each party will take reasonable measures to protect the confidentiality of the Confidential Information of the other party. Each party shall immediately notify the other party in the event of any unauthorized use or disclosure of the Confidential Information of which it becomes aware. As used herein, "Confidential Information" shall mean any nonpublic information concerning the parties or their respective business or technology that may be learned by the other party in connection with the Service and that is identified as confidential or which the other party should know from the nature of the information is the confidential information of the other party. Confidential Information shall include, without limitation, (a) trade secrets; (b) financial information and pricing; (c) technical information, such as research, development, procedures, algorithms, processes, data, designs, and know-how; (d) business information, such as operations, planning, marketing interests, and products; (e) with respect to Gobbler, the Service and the Technology, and all related documentation; and (f) with respect to Customer, shall include the Customer Content. Notwithstanding the foregoing, Confidential Information does not include information that is: (v) known to the receiving party prior to disclosure by the disclosing party; (w) independently developed by the receiving party without any reliance on the Confidential Information; (x) part of the public domain or is lawfully obtained by the receiving party from a third party not under an obligation of confidentiality; (y) free of confidentiality restrictions by agreement of the disclosing party; or (z) the existence of the relationship of the parties under these Terms of Use.

8. Repeat Infringer Policy. In accordance with the Digital Millennium Copyright Act and other applicable law, Gobbler has adopted a policy of terminating, in appropriate circumstances and at Company's sole discretion, subscribers or account holders who are deemed to be repeat infringers. Company may also at its sole discretion limit access to the Gobbler website and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.

9. Copyright Complaints. If you believe that anything on the Gobbler website infringes upon any copyright which you own or control you may file a notification of such infringement with our Designated Agent as set forth below.

Name of Agent Designated to Receive Notification of Claimed Infringement: Michael Gitig
Full Address of Designated Agent to Which Notification Should be Sent:
6427 W. Sunset Blvd
Los Angeles, CA 90028
Telephone Number of Designated Agent: 323.203.3222
Facsimile Number of Designated Agent: 323.654.6404
E-Mail Address of Designated Agent: dmca@gobbler.com

Please see 17 U.S.C. ยง512(c)(3) for the requirements of a proper notification. You should note that if you knowingly misrepresent in your notification that the material or activity is infringing, you will be liable for any damages, including costs and attorneys' fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.

10. Term; Termination

10.1 Term. These Terms of Use shall continue in effect on a month-to-month basis until Customer's account is terminated by Customer or Gobbler as set forth herein (the "Term").

10.2 Termination. Either party may terminate the Service at any time upon written notice to the other party.

10.3 Procedure Upon Termination. Upon termination of the Service, Customer will cease all use of the Service, and Gobbler shall have the right to delete all of the Customer Content that may be stored in connection with the Service.

10.4 Survival. The following sections shall survive any termination or expiration of the Term, the Service or these Terms of Use: Sections 3.2, 3.3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, and 14.

11. Discontinuation or Modification of Service. Gobbler reserves the right to modify, suspend or discontinue the Service at any time with or without notice, including adding, changing or removing any features or functionality of the Service.

12. Representations and Warranties

12.1 No Gobbler Warranties. Customer acknowledges that Customer is participating in a beta test of the Software and the Service and that the Software and the Service may not be ready for general commercial release and may contain bugs, errors and defects. ACCORDINGLY, THE SOFTWARE AND THE SERVICE ARE PROVIDED BY GOBBLER AND ACCEPTED BY CUSTOMER "AS IS" AND "WITH ALL FAULTS, DEFECTS AND ERRORS." GOBBLER MAKES NO WARRANTY, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, REGARDING THE SOFTWARE, THE SERVICE, OR ANY OTHER ITEMS OR SERVICES PROVIDED IN CONNECTION THEREWITH, INCLUDING WITHOUT LIMITATION THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, PERFORMANCE, AVAILABILITY, SECURITY, ACCURACY OR COMPLETENESS OF THE SOFTWARE OR THE SERVICE OR ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. GOBBLER SHALL HAVE NO LIABILITY FOR ANY ERROR, OMISSION OR DEFECT IN THE SOFTWARE OR THE SERVICE, ANY INABILITY TO USE THE SOFTWARE OR THE SERVICE OR ANY LOSS OF CUSTOMER CONTENT, DATA OR OTHER DAMAGE TO CUSTOMER AS A RESULT OF THE USE OF THE SOFTWARE OR THE SERVICE.

WITHOUT LIMITING THE FOREGOING, GOBBLER DOES NOT REPRESENT OR WARRANT THAT (A) THE SERVICE SHALL BE COMPATIBLE WITH ANY PARTICULAR CUSTOMER PLATFORM, SOFTWARE OR INTERFACES, OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (B) THE SERVICE SHALL MEET CUSTOMER'S REQUIREMENTS OR EXPECTATIONS OR ACHIEVE ANY PARTICULAR RESULTS; (C) ANY STORED DATA SHALL BE ACCURATE OR RELIABLE; (D) MINOR ERRORS OR DEFECTS SHALL BE CORRECTED; (E) THAT THE SERVICE SHALL BE UNINTERRUPTED OR ERROR-FREE; OR (F) THE SERVICE OR THE SERVERS THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

12.2 Customer Warranties. Customer represents and warrants to Gobbler that at all times the Customer Content (i) shall not infringe upon or violate the rights of any third party or violate any applicable laws; and (ii) comply with applicable law and all the rules set forth in these Terms of Use or otherwise established by Gobbler regarding the Customer Content.

12.3 Customer Responsibility. Customer assumes full responsibility for (i) the selection of the Service; (ii) the proper use of the Service; (iii) verifying the results obtained from the use of the Service; (iv) maintaining additional backup copies of all Customer Content; and (v) taking appropriate measures to prevent loss of data, protect against software viruses, and protect against software security breaches.

13. Limitation of Liability. IN NO EVENT SHALL GOBBLER BE LIABLE TO CUSTOMER OR ANY OTHER THIRD PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS, LOSS OF DATA, LOST REVENUES, LOST BUSINESS OPPORTUNITIES OR OTHER ECONOMIC ADVANTAGE, FOR ANY CAUSE OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE OR THESE TERMS OF USE, EVEN IF GOBBLER HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL GOBBLER'S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO GOBBLER FOR THE SERVICE IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.

14. Miscellaneous

14.1 Waiver; Invalidity. The failure by either party to enforce any provision of these Terms of Use shall not be construed as a waiver of the provision. If any provision of these Terms of Use is held unlawful or otherwise ineffective, in whole or in part, by a court of competent jurisdiction, the remainder of these Terms of Use shall remain in full force and effect, and the provision modified, or these Terms of Use interpreted to the maximum extent permitted, to effect the original intent and purpose of the parties.

14.2 Force Majeure. Neither party shall be liable for any delay in performance caused by (i) acts of God; (ii) war or armed hostilities; (iii) government acts or priorities; (iv) strikes or labor troubles causing cessation, slowdown or interruption of work; (v) inability, after due and timely diligence, to procure materials, systems, accessories, equipment or parts; or (vi) any other cause to the extent the cause is beyond the party's control and not occasioned by the party's fault or negligence. In such event, the date for completion of the party's performance shall be equitably extended; provided, however, that the performance of any obligation for the reporting or payment of any monies owed under these Terms of Use shall not be delayed for a period of more than thirty (30) days.

14.3 Complete Agreement. These Terms of Use constitute the complete and only agreement between Gobbler and Customer regarding the Service and supersedes all prior understandings, communications, discussions, negotiations, contracts and agreements between Gobbler and Customer relating to the subject matter hereof, whether oral or written. These Terms of Use include all posted policies and provisions that are referred to in these Terms of Use.

14.4 Amendment. Gobbler reserves the right to revise these Terms of Use by posting the revised changes on the Gobbler website. Revisions will be effective immediately upon posting. By continuing to use the Service following any posted revision, Customer will be deemed to have agreed to such revisions. If Customer does not agree with any revisions to these Terms of Use, Customer must cease using the Service and must cancel Customer's account.

14.5 Assignment. These Terms of Use may not be assigned by either party without the other party's prior written approval; provided, however, that these Terms of Use may be assigned by Gobbler without consent to (i) an affiliate of Gobbler; (ii) an acquirer of all or substantially all of the assets or equity of Gobbler, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void.

14.6 Law and Jurisdiction. These Terms of Use are governed by the laws of the State of California, excluding any choice of laws or rules that might otherwise be applicable. The parties expressly consent to the venue and jurisdiction of the federal or state courts located in Los Angeles County, California, with respect to any actions that may arise out of, or relate to, these Terms of Use or the Service.

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