Updated: May 27, 2010
IMPORTANT: USE OF THE AURALINK™ WEBSITE, AURALINK SERVICES AND ASSOCIATED SOFTWARE IS CONDITIONED UPON YOUR COMPLIANCE WITH AND ACCEPTANCE OF THESE TERMS OF SERVICE.
BY ACCESSING THE AURALINK WEBSITE OR BY UTILIZING AURALINK SERVICES OR ASSOCIATED SOFTWARE, YOU AGREE TO BE BOUND BY THESE TERMS OF SERVICE. IF YOU DO NOT AGREE WITH THESE TERMS OF SERVICE, DO NOT USE THE WEBSITE, SERVICES OR SOFTWARE.
1. Auralink Services. This is a legal agreement (“Agreement”) between you (hereinafter referred to as “You” or “Subscriber”) and the Cenero, LLC (“Cenero”) for use of the Auralink services selected or initiated by You (the “Services”). Auralink is a registered trademark of Cenero. Services in this Agreement do not refer to or include any professional services or works for hire (“Professional Services”). In order to use certain Services, Subscriber may be required to download content, software, and/or required to agree to supplemental terms and conditions. These supplemental terms and conditions are hereby incorporated into this Agreement. Cenero may elect to change or supplement the terms of this Agreement from time to time at its sole discretion. Cenero will exercise commercially reasonable business efforts to provide notice to Subscriber of any material changes to this Agreement. Within five (5) business days of posting changes to this Agreement, they will be binding on Subscriber. If Subscriber does not agree with the changes, Subscriber should discontinue using the Services. If Subscriber continues using the Services after such five (5) business day period, Subscriber will be deemed to have accepted the changes to the terms of this Agreement. The most current version of this Agreement can be reviewed by clicking on the “Terms of Service” hypertext link located at the bottom of Auralink’s web pages. Use of the Services requires one or more compatible devices, Internet and wireless access (fees may apply), and certain software (fees may apply), and may require obtaining updates or upgrades from time to time. Because use of the Services involves hardware, software, and Internet access, Subscriber’s ability to use the Services may be affected by the performance of these elements. High speed Internet access is recommended. Subscriber acknowledges and agrees that such system requirements, which may change from time to time, are Subscriber’s responsibility.
2. Subscriber Information. Subscriber may be required to provide information in order to register for and/or use certain Services. Subscriber warrants that all such information is accurate.
3. Changes to Services / Beta Services. Cenero may, at its sole discretion, and from time to time, (i) discontinue the Services or modify the features of the Services from time to time without prior notice; and (ii) make available additional features and/or functionalities to a Service which may, but are not required to, be added to a Service by Subscriber at an additional cost (“Cost Feature”). If Subscriber elects to add a Cost Feature, it may do so by obtaining a quote from the Auralink sales department or signing up online (if available online). Cenero may, at its sole discretion, make available to Subscriber a “beta” version of any of the Services (the “Beta Services”) for purposes of evaluation and feedback. Subscriber acknowledges that the Beta Service(s) Subscriber is evaluating may contain bugs, errors and other problems and is provided to Subscriber “AS-IS.” Cenero disclaims any warranty or liability obligations to Subscriber of any kind with respect to the Beta Services. Subscriber further acknowledges the importance of communication between Cenero and Subscriber during Subscriber’s use of the Beta Services and hereby agrees to receive related correspondence and updates from Cenero. In the event Subscriber requests to opt-out from such communications, Subscriber’s participation in the Beta Services will also be canceled. Subscriber also hereby acknowledges that Cenero has not made any representations, promises or guarantees that the Beta Services will ever be announced or made available to anyone in the future and that Cenero has no express or implied obligation to Subscriber to announce or introduce the Beta Services. During the Auralink Beta program, Subscriber will be asked to provide feedback regarding Subscriber’s use of the Beta Service(s). Subscriber agrees that Cenero is free to use and incorporate into Cenero and/or Auralink products and services any suggestions, ideas, recommendations, bug reports, or other feedback (including, but not limited to, feedback on any Beta Services) that Subscriber provides to Cenero without payment of compensation to Subscriber. Cenero may suspend or terminate access to Beta Services (and delete any Content or data provided to Cenero with respect to such Beta Service(s)) at any time, without notice and without any liability to Subscriber.
4. Payment. Subscriber agrees that Cenero may charge Subscriber’s credit card or other payment mechanism selected by Subscriber and approved by Cenero (“Subscriber’s Billing Account”) for all amounts due and owing for the Services, including, but not limited to, Service fees, set up fees, subscription fees, overage fees, conferencing fees, storage fees, or any other fee or charge associated with Subscriber’s Billing Account. Cenero reserves the right to charge interest at the lower of 1.5% per month or the highest rate permitted by law on any monthly payment (not being reasonably disputed by Subscriber) that is not received when due. Subscriber must notify Cenero in writing of any disputed fees within fifteen (15) days from the date Subscriber’s Billing Account is charged for such disputed fee. Cenero may suspend the Services for non-payment of undisputed fees. Additionally, Cenero is entitled to recover any reasonable sums expended in connection with the collection of sums not paid when due. Cenero may change prices at any time without prior notice. Subscriber shall pay all taxes (exclusive of taxes based on the net income of Cenero), levies, or charges imposed by any governmental authority of any kind whatsoever applicable to any of the materials, goods, Services or related components. Upon Subscriber’s request, Cenero will refund to Subscriber a pro-rata portion of any unused Service fees actually paid in the event Cenero: (a) discontinues such Services as specified in Section 3(i) above; or (b) terminates this Agreement pursuant to Section 5(a) below.
5. Term and Termination.
a. Term and Termination of Agreement. This Agreement will commence on the date Subscriber accepts this Agreement. Subscriber may terminate this Agreement by providing thirty (30) days prior notice to Cenero. Such termination will be effective on the last day of the then-current term, subject to thirty (30) days prior notice. Cenero may terminate this Agreement and/or Subscriber’s account immediately without notice.
b. Surviving Provisions. The following provisions will survive the expiration or termination of this Agreement: Sections 4 (as to amounts due and owing as of this Agreement’s expiration or termination date), 6, 7, 8 and 9. Upon any termination of this Agreement, Subscriber must cease any further use of the Services and destroy any copies of associated software within its possession and control (to the extent not prohibited by applicable law).
6. Subscriber Responsibilities.
a. Account Number/Password. Except when Subscriber’s account number/password is obtained by a third party as a result of a material breach of Cenero’s physical or computer system security arising from circumstances within Cenero’s control, Subscriber agrees that Subscriber is solely responsible for maintaining the confidentiality of Subscriber’s username, account number and passwords and solely responsible for any unauthorized usage. Subscriber agrees to immediately notify Cenero of any unauthorized use of Subscriber’s account of which Subscriber becomes aware.
b. Content. Except when Subscriber’s account is accessed by a third party as a result of a material breach of Cenero’s physical or computer system security arising from circumstances within Cenero’s control, Subscriber agrees that it is solely responsible for the content of all visual, written or audible communications and any other material (“Content”) displayed, uploaded, exchanged or transmitted on or through the Service. Under no circumstances will Cenero be liable to Subscriber for any loss or damages: (i) arising from any Content or Content related errors or omissions; or (ii) incurred as a result of the use of, access to, or denial of access to the Content. Subscriber understands and agrees that by displaying, uploading, exchanging or transmitting Content while using the Services or otherwise providing Content to a Cenero or Auralink website or space (“Site”), Subscriber automatically grants (and warrants and represents it has a right to grant) to Cenero a world-wide, royalty-free, sublicensable (so Cenero affiliates, contractors, resellers and partners can deliver the Services), perpetual, irrevocable license to use, modify, publicly perform, publicly display, reproduce and distribute the Content solely for the purpose of offering the Sites and/or the Services. If at any time Subscriber objects to any material on a Site, Subscriber’s sole remedy is to cease using it (to the extent not prohibited by applicable law). Cenero does not endorse and has no control over what Subscribers or other users of the Service (“Users”) post or submit to a Site. Subscriber shall contact Auralink Customer Support in accordance with the contact information provided in the applicable Services website if Subscriber becomes aware of misuse of the Services by any person. Cenero cannot guarantee the accuracy of any information submitted by any User or Content, nor any identity information about any User. Cenero may without notice or liability investigate any complaints and violations or suspected violations of this Agreement that come to its attention and may take any action that it believes is appropriate, including, but not limited to, to rejecting, refusing to post or removing any profile, posting Content, or other data, or restricting, suspending, or terminating Subscriber or any User's access to a Site or Services. However, because situations and interpretations vary, Cenero also reserves the right not to take any action.
c. Communications. Subscriber agrees that Subscriber will not use the Services to send unsolicited email outside Subscriber’s company or organization (e.g., “spam”) in violation of applicable law, falsify any email header information when sending emails (e.g., “spoofing”), or attempt to acquire sensitive information such as usernames, passwords and credit card details by masquerading as a trustworthy entity (e.g., “phishing”). Subscriber further agrees not to use the Services to communicate any message or material that is harassing, libelous, threatening, obscene, or that would violate the intellectual property rights of any party, give rise to civil liability, constitute a criminal offense, or is otherwise unlawful under any applicable law or regulation. Subscriber agrees to indemnify, defend and hold harmless Cenero from any and all third party claims, liability, damages and/or costs (including, but not limited to, attorneys’ fees) arising from Subscriber’s violation of this Section 6.
d. Privacy. Use of the Sites and the Services constitutes consent by Subscriber to Cenero’s and/or its affiliates’ collection and use of such information. Use of Sites and the Services is also subject to Auralink’s Privacy Statement located at http://www.auralink.com/privacy, which is incorporated into this Agreement by this reference. The foregoing notwithstanding, Cenero may contact Subscriber via e-mail or otherwise with information relevant to Subscriber’s use of the Services and payment obligations, if any, regardless of whether Subscriber has opted out of receiving such notices. Subscriber’s also agrees to have Subscriber’s name and/or email address listed in the header of certain communications Subscriber initiates through the Services.
7. Warranty Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SUBSCRIBER UNDERSTANDS AND AGREES THAT THE SERVICES, SITES, AND ANY ASSOCIATED SOFTWARE, ARE PROVIDED “AS IS” AND “AS AVAILABLE.” TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, CENERO, AND ITS SUPPLIERS, RESELLERS AND AFFILIATES, EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. CENERO, AND ITS SUPPLIERS, RESELLERS AND AFFILIATES, MAKE NO WARRANTY OR REPRESENTATION REGARDING THE SERVICES, ANY INFORMATION, MATERIALS, GOODS OR SERVICES OBTAINED THROUGH THE SERVICES OR THE SITES, OR THAT THE SERVICES WILL MEET ANY SUBSCRIBER REQUIREMENTS, OR BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE. Subscriber agrees to indemnify, defend and hold harmless Cenero, its affiliates, officers, directors, employees, consultants, agents, suppliers and resellers from any and all third party claims, liability, damages and/or costs (including, but not limited to, attorneys’ fees) arising from Subscriber’s use of the Services, Subscriber’s violation of this Agreement or the infringement or violation by Subscriber or any other user of Subscriber’s account, of any intellectual property or other right of any person or entity. Without limiting the foregoing, the Services are not designed or licensed for use in environments requiring fail-safe controls, including without limitation operation of nuclear facilities, aircraft navigation/communication systems, air traffic control, and life support or weapons systems, and Cenero, and its suppliers, resellers and affiliates, specifically disclaim any express or implied warranty of fitness for such purposes.
8. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL CENERO, OR ITS SUPPLIERS, RESELLERS OR AFFILIATES, BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, PROCUREMENT OF SUBSTITUTE GOODS AND/OR SERVICES, OR ANY OTHER PECUNIARY LOSS) INCLUDING BUT NOT LIMITED TO CLAIMS ARISING OUT OF, OR RESULTING FROM THE USE OF OR INABILITY TO USE THE SERVICES, THE SITES, OR ASSOCIATED SOFTWARE, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF CENERO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, CENERO’S (AND ITS SUPPLIERS’, RESELLERS’ AND AFFILIATES’) MAXIMUM CUMULATIVE LIABILITY AND SUBSCRIBER’S EXCLUSIVE REMEDY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY SUBSCRIBER, IF ANY, FOR THE SUBSCRIPTION SERVICE FEES IN THE PREVIOUS TWELVE (12) MONTHS PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH CLAIMS EVEN IF ANY REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. THIS LIMITATION IS CUMULATIVE AND NOT PER INCIDENT (I.E., THE EXISTENCE OF TWO OR MORE CLAIMS WILL NOT ENLARGE THIS LIMIT.
a. Proprietary Rights. Excluding Subscriber Marks and Content, Cenero and/or its suppliers, as applicable, retain ownership of all proprietary rights in the Services and Sites and in all trade names (including “Auralink”), trademarks, service marks, logos, and domain names (“Cenero Marks”) associated or displayed with the Services. Subscriber may not frame or utilize framing techniques to enclose any Cenero Marks, or other proprietary information (including images, text, page layout, or form) of Cenero without Cenero’s express written consent. Subscriber may not use any meta tags or any other “hidden text” utilizing Cenero Marks without Cenero’s express written consent. Subscriber shall retain ownership of all proprietary rights, copyright and any other rights it already holds in any Subscriber trade names, trademarks, service marks, logos, and domain names.
b. Use of Subscriber’s Name and Logo. For certain Services, Subscriber agrees that Cenero may use Subscriber’s name, logo and other trademarks or service marks of Subscriber (collectively “Subscriber’s Trademarks”) for the sole purpose of creating a co-branded site for Subscriber as part of the delivery of the Services. Nothing in this Agreement transfers to Cenero any right, title or interest in or to the Subscriber’s Trademarks, and all goodwill arising from use of the Subscriber’s Trademarks will inure to the Subscriber’s benefit.
d. Assignment. Cenero may assign or delegate its obligations under this Agreement either in whole or in part, without the prior consent of Subscriber.
e. Contracting Party, Applicable Law and Jurisdiction. This Agreement is between Subscriber and Cenero and is governed by the laws of the Commonwealth of Pennsylvania. Venue and jurisdiction will lie in Pennsylvania.
i. Notwithstanding the foregoing, either party shall at all times have the right to commence proceedings in any other court of its choice for interim injunctive relief in the event of threatened or actual breach of intellectual property rights.
ii. The parties specifically disclaim the application of the UN Convention on Contracts for the International Sale of Goods to the interpretation or enforcement of this Agreement.
f. Interpretation and Conflicting Terms. This Agreement will be interpreted fairly in accordance with its terms and without any strict construction in favor of or against either party. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. The terms of this Agreement shall apply, regardless of any additional or conflicting terms on any purchase order, acknowledgement, quotation, prior understanding or other correspondence or documentation submitted by Subscriber to Cenero or Auralink, and any such additional or conflicting terms are deemed rejected by Cenero, unless such terms are expressly agreed to by amendment to this Agreement, and are executed by both Subscriber and Cenero. No contingency contained on any purchase order shall be binding upon Cenero. No person or entity not a party to this Agreement will be deemed to be a third party beneficiary of this Agreement or any provision hereof.
g. Force Majeure. Neither party will be responsible for failure of performance due to causes beyond its control. Such causes include (without limitation) accidents, acts of God, labor disputes, actions of any government agency, shortage of materials, acts of terrorism, or the stability or availability of the Internet or a portion thereof.
h. Waivers. The waiver of any one breach, default or right granted under this Agreement will not constitute the waiver of any subsequent breach, default or right granted. Any provision of this Agreement held to be illegal or unenforceable will be deemed amended to conform to applicable laws or regulations, or if it cannot be so amended without materially altering the intention of the parties, it will be stricken and the remainder of this Agreement will continue in full force and effect.
i. Use of the Services. Subscriber may use the Services only as permitted under the terms and conditions of this Agreement or other written agreements between Subscriber and Cenero. Subscriber will not resell, distribute, use on a timeshare or service bureau basis, or otherwise directly generate income from the Services. Subscriber will not modify, make derivative works of, disass