Terms of Service
BY INSTALLING, DOWNLOADING OR USING THE SOFTWARE OR THE SERVICE, YOU (“YOU” OR “CUSTOMER”) ARE ENTERING INTO A BINDING AGREEMENT WITH MEDIA GOBBLER, INC. (“GOBBLER”) AND ITS THIRD PARTY LICENSORS AND SUPPLIERS (“THIRD PARTY LICENSORS”), INCLUDING SUBSCRIPTION LICENSORS, AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE, WHICH MAY ALSO INCORPORATE BY REFERENCE OTHER THIRD PARTY TERMS (COLLECTIVELY “TERMS”).
IF YOU DO NOT AGREE TO ALL OF THE TERMS, 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. The Gobbler Service and Third Party Software.
1.1 The Gobbler service is a proprietary audio file storage and management platform that enables customers to store, manage, organize and transfer their audio files and download third party software applications and content (“Third Party Software”) available through the Gobbler marketplace platform, and includes the Gobbler website and Software, as defined below, (collectively the “Service”). These Terms govern any public upgrades and updates to the Service that Gobbler or its Third Party Licensors may offer.
1.2 Customer understands and agrees that Gobbler allows certain Third Party Licensors to offer Third Party Software as subscription sales via the Gobbler Service (also referred to as “Subscription Licensors”), and all such terms herein apply to such Third Party Software, which is part of the Gobbler Service and Software. For the avoidance of doubt, all references to Service include Software (including Third Party Software).
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 Subject to these Terms, 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, including Third Party Software, provided in connection with such Service (collectively the “Software”), solely for Customer’s personal or internal business purposes and solely for its intended purpose.
3.2 Installation. The Software is licensed for installation and use only in the manner it was provided to you, as configured by an automated installation program provided with the Software. You may not separate the components contained in the Software or otherwise reconfigure the Software to circumvent technical limitations on the use of the Software or to otherwise exceed the scope of your license.
3.3 Reserved Rights. The Service involves valuable proprietary rights of Gobbler and its Third Party Licensors. No title to or ownership of the Software, the Service or any proprietary rights associated therewith is transferred by these Terms to Customer or any third party. All rights not expressly granted in these Terms are reserved by Gobbler and its Third Party Licensors.
3.4 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, except as expressly permitted herein and subject to the terms set forth in these Terms. Unless otherwise restricted by law, Customer may not reverse engineer, disassemble, or decompile the Service or otherwise attempt to discover the source code of the Software in the Service. 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 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.
3.5 Additional Terms Governing Third Party Software.
3.5.1 Third Party Terms. Customer understands and agrees that certain Third Party Software is subject to additional separate third party terms and conditions located here. By using the Software, you agree to such third party terms and conditions, which are expressly incorporated herein by reference.
3.5.2 Termination of Subscriptions. Customer understands and agrees that Gobbler’s Subscription Licensors may terminate a license to its Third Party Software available through the Gobbler Service at any time and, in such event, Customer is responsible for contacting the Subscription Licensor directly regarding a refund of payment, if applicable. Gobbler is not responsible for such refunds. All other payments are non-refundable.
3.5.3 Support. Customer understands and agrees that the Subscription Licensor is responsible for support of its Third Party Software, and Customer must contact such Subscription Licensor directly with questions regarding support, if any, that may be available. Gobbler is not responsible for support of the Third Party Software.
3.5.4 Payments. All purchases through the Gobbler Service are processed through a third party provider. Customer agrees to provide complete and accurate payment information and further agrees to any terms and conditions of such third party payment provider. In the case of refusal of payment, Customer’s access to the Third Party Software or other paid for Services will be denied. Customer may contact Gobbler with any questions or concerns regarding payments by emailing [email protected] Customers may contact the Subscription Licensor directly for other inquiries relating to refunds and returns of any Third Party Software.
3.5.5 Annual and Multi-Year Contracts, Paid Monthly, Auto-Renewal
Certain Third Party Software distributed on the Gobbler Service may allow for either a committed annual contract paid monthly or multi-year such as a 2-year contract paid monthly (“Commitment Subscriptions”). Service for Commitment Subscriptions begins as soon as the Customer’s iLok deposit occurs or 30 days after purchase, whichever is sooner. Customer will be charged at the rate stated at the time of purchase, plus applicable taxes, which will be charged every month for the entire duration of the Commitment Subscription, i.e., either one or two years. If the applicable VAT or tax rate (or other included duty) changes during the term of the Commitment Subscription, the VAT/tax inclusive price will adjust accordingly. The Commitment Subscription will renew automatically, and Customer’s credit card will automatically be charged, for the same term of the prior Commitment Subscription until Customer requests not to auto-renew the Commitment Subscription via the Account Manager. In the event Customer requests not to auto-renew, the then current Commitment Subscription will end on the last day of the term of such Commitment Subscription. If Customer violates the terms of the Commitment Subscriptions, including ceasing to pay before the end of the Commitment Subscription term, Customer will be permanently restricted from purchasing any Commitment Subscriptions and will be responsible for any fees incurred in the collection of Customer’s unpaid debt.
3.5.6 Annual contract, Prepaid, Auto-Renewal
Certain Third Party Software distributed on the Gobbler Service may allow for the purchase of an annual, pre-paid subscription contract for such Third Party Software (“Annual Pre-paid Subscriptions”). Service for Annual Pre-paid Subscriptions will begin as soon as Customer’s iLok deposit occurs or 30 days after purchase, whichever is sooner. Customer will be charged the annual rate stated at the time of purchase as one lump sum, plus applicable taxes/VAT. The Annual Pre-Paid Subscription will automatically renew, and Customer’s credit card will automatically be charged, for continuing annual terms until Customer requests not to auto- renew via the Account Manager. In the event Customer requests not to auto-renew, then the Annual Prepaid Subscription will terminate on the last day of the Annual Prepaid Subscription.
3.5.7 iLok Redeposit Fees
Customer will be responsible for any requested iLok redeposit fees that Gobbler deems to be illegitimate, as determined by Gobbler in its sole reasonable discretion, including redeposit requests that arise from fraudulent conduct.
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 (the “Customer Content”), including without limitation the accuracy, quality, integrity, completeness, legality, reliability, appropriateness, non-infringement 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 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 these Terms. 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, sub-licensable 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, 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 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 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 and its Third Party Licensors 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 these Terms or applicable laws, rules or regulation.
6. Intellectual Property Ownership
6.1 Gobbler Rights. As between the parties, Gobbler and its Third Party Licensors own all right, title and interest in and to the Service, including, without limitation, all proprietary processes and technologies relating thereto, and all intellectual property rights therein, including, without limitation, all modifications, updates and derivative works relating to the Service. 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.
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. 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.
8. 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:
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: [email protected]
Please see 17 U.S.C. §512(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.
9. Term; Termination
9.1 Term. These Terms shall continue in effect on a month-to-month or annual basis until Customer’s account is terminated by Customer or Gobbler as set forth herein (the “Term”).
9.2 Termination. Either party may terminate the Service at any time upon written notice to the other party for monthly and annual terms. For annual and multi-year contracts that are paid monthly, Gobbler can terminate the service at any time upon written notice to the other party, but the other party must complete their committed contract prior to requesting to terminate their contract with written notice.
9.3 Procedure Upon Termination. Upon termination of the Service, Customer will cease all use of the Service, licenses to the Service shall cease and Gobbler shall have the right to delete all of the Customer Content that may be stored in connection with the Service.
9.4 Survival. The following sections shall survive any termination or expiration of the Term, the Service or these Terms: Sections 3.3, 4, 5, 6, 7, 8, 11, 12, and 13, and any other sections that by their nature, naturally survive termination of these Terms.
10. 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.
11. Representations and Warranties
11.1 No Gobbler Warranties. THE SERVICE, INCLUDING THE SOFTWARE, IS PROVIDED BY GOBBLER AND ITS THIRD PARTY LICENSORS 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. NEITHER GOBBLER NOR ITS THIRD PARTY LICENSORS SHALL HAVE ANY 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 THE SERVICE, INCLUDING THE SOFTWARE.
WITHOUT LIMITING THE FOREGOING, NEITHER GOBBLER NOR ITS THIRD PARTY LICENSORS 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.
11.2 Additional Customer Warranties. Customer represents and warrants to Gobbler that at all times the Customer Content (i) does not and shall not infringe upon or violate the rights of any third party or violate any applicable laws; and (ii) complies with applicable law and all the rules set forth in these Terms or otherwise established by Gobbler regarding the Customer Content.
11.3 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.
12. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL GOBBLER OR ITS THIRD PARTY LICENSORS 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, EVEN IF GOBBLER OR ITS THIRD PARTY LICENSORS HAVE BEEN ADVISED OR ARE OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL GOBBLER’S OR ITS THIRD PARTY LICENSORS’ AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO GOBBLER OR ITS THIRD PARTY LICENSORS FOR THE SERVICE IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
13.1 Waiver; Invalidity. The failure by either party to enforce any provision of these Terms shall not be construed as a waiver of the provision. If any provision of these Terms is held unlawful or otherwise ineffective, in whole or in part, by a court of competent jurisdiction, the remainder of these Terms shall remain in full force and effect, and the provision modified, or these Terms interpreted to the maximum extent permitted, to effect the original intent and purpose of the parties.
13.2 Force Majeure. Neither Gobbler nor its Third Party Licensors 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, Internet or parts; or (vi) any other cause to the extent the cause is beyond its control and not occasioned by its 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 payment of any monies owed under these Terms shall not be delayed for a period of more than thirty (30) days.
13.3 Complete Agreement. These Terms 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 include all posted policies and provisions that are referred to in these Terms.
13.4 Amendment. Gobbler reserves the right to revise these Terms by posting the revised changes on the Gobbler website. Revisions will be effective immediately upon posting. You will also be given notice of material updates via the Service. 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, Customer must cease using the Service and must cancel Customer’s account.
13.5 Assignment. These Terms may not be assigned by Customer without Gobbler’s prior written approval. Any purported assignment in violation of this section shall be void.
13.6 Law and Jurisdiction. These Terms 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 or the Service.
13.7 Export Restrictions. The Software is subject to United States export laws and regulations. You must comply with these laws, which include restrictions on destinations, end users and end use. For further information, please see http://www.bis.doc.gov. You may not export, convey, rent, sublicense, or otherwise distribute the Software or any rights therein to any person or entity.
13.8 The Software is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the Software as are granted to all other Customers herein, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.