AudioShake® Master Subscription Agreement
Last updated November 2024
This Master Service Agreement (“MSA”) is a legal agreement between you (“Customer”) and Audioshake, Inc., a Delaware corporation (“Audioshake”) governing your use of the Audioshake Platform. Together with any Order Forms, it shall comprise the “Agreement”. If you are entering into the Agreement on behalf of a business or other legal entity, you hereby represent and warrant that you have the authority to bind such entity to the terms and conditions thereof, in which case “Customer” shall refer to such entity.
By signing up for use of the Audioshake Platform (including through execution or acceptance of an Order Form) and completing the registration process, Customer indicates its acceptance of the MSA and agrees to abide by the terms and conditions set forth herein without modification. If Customer does not agree with the terms and conditions set forth herein, Customer may not use the Audioshake Platform.
1. Definitions
1.1 “Audioshake Platform” means the technology and related services made commercially available by Audioshake, and any current and future underlying software products, platforms, and services, and any bug fixes, improvements, updates, upgrades, configurations, extensions, enhancements, translations, localizations, ports, new versions, releases on additional operating environments, and other changes thereto.
1.2 “End Users” means individuals who are authorized to access and use the Audioshake Platform under the applicable Order Form. End Users may include but are not limited to Customer and Customer’s employees, consultants, contractors, and agents.
1.3 “Enhancements” means ideas, concepts, know-how, expertise, methods, methodologies, functional and technical architectures, techniques or skills, writings in which any of the same are fixed (including, without limitation, all reports, computer software systems, routines, data models, technical data, processes, designs, code and documentation and systems, concepts and business information) Audioshake has developed or is developing in connection with the AudioShake Platform.
1.4 “Fees” means fees for use of the Audioshake Platform and any other amounts due to Audioshake and payable by Customer under this Agreement.
1.5 “Order Form(s)” means the ordering documents that are executed by Customer and Audioshake from time to time, in the form provided by Audioshake. Order Forms are deemed incorporated herein. For avoidance of doubt, an “Order Form” is either: (1) a written or online document provided by Audioshake through which Customer purchases Services; or (2) any online form within the Audioshake Platform for purchase of ancillary services provided by Audioshake, such as stem perfecting.
1.6 “Services” means access to the Audioshake Platform and any related services, as contracted for by Customer pursuant to an Order Form.
1.7 “Content” means any content uploaded by Customer or an End User to the Audioshake Platform, and any outputs derived from such content.
2. Registration and Access
2.1 Registration. Customer must provide complete and accurate information during the registration process, including on any Order Forms.
2.2 Free Trial. Audioshake may make all or part of the Audioshake Platform available to Customer and End Users on a trial basis free of charge (the “Free Trial”). The Free Trial shall begin when Customer submits a registration for the same to Audioshake, and shall terminate on the earlier of (i) the Free Trial expiration date as specified by Audioshake upon receiving Customer’s registration, or (ii) the date Customer executes an Order Form under this Agreement.
2.3 Services. Audioshake shall provide the Services specified in an Order Form, according to the terms of such Order Form. Customer agrees that Customer’s purchase of Services is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Audioshake with respect to future functionality or features.
2.4 Support. Audioshake shall provide support for the Audioshake Platform as set forth in the applicable Order Form.
3. Account; Content
3.1 Restrictions. Customer is responsible for all activities that occur on Customer’s account and for End Users’ compliance with this Agreement. Customer will keep confidential and not disclose to any third parties any user identifications, account numbers and account profiles. Customer and End Users shall use the Audioshake Platform solely for Customer’s internal business purposes as contemplated by this Agreement and shall not: (i) tamper with the security of the Audioshake Platform or tamper with other customer accounts of Audioshake, (ii) access data on the Audioshake Platform not intended for Customer, (iii) log into a server or account on the Audioshake Platform that Customer is not authorized to access, (iv) attempt to probe, scan or test the vulnerability of any system or to breach the security or authentication measures; (v) render any part of the Audioshake Platform unusable; (vi) lease, distribute, license, sell or otherwise commercially exploit the Audioshake Platform or make the Audioshake Platform available to any third party; (vii) use the Audioshake Platform for time sharing or service bureau purposes or otherwise for the benefit of a third party; (viii) provide to third parties any evaluation or Free Trial version of the Audioshake Platform without Audioshake’s prior written consent; (ix) use the Audioshake Platform for any unlawful purpose.
3.2 Content. Customer will use the Audioshake Platform exclusively for authorized and legal purposes, consistent with all applicable laws, regulations and the rights of others. Without limiting the generality of the foregoing, Customer hereby represents and warrants that the Content does not infringe on the rights of any third party or violate any applicable laws or regulations. Although Audioshake does not monitor or police communications, content, or data uploaded to or transmitted through the Audioshake Platform, Audioshake reserves the right to immediately remove, in its sole discretion, any unlawful content it becomes aware of. In addition to any other rights and remedies under this Agreement and at law, Audioshake reserves the right to immediately suspend access to the Audioshake Platform if a breach, in Audioshake’s determination, is an imminent threat to Audioshake or the Audioshake Platform.
3.3 Account Access. Customer shall authorize access to up to the number of End Users procured by Customer on the applicable Order Form. Each End User must be assigned or select a unique password and username. User logins are for designated End Users and cannot be shared or used by more than one End User, but any End User login may be reassigned to another End User as needed. Customer is responsible for the use of End User’s passwords and usernames, and their confidentiality. Any communications received under Customer’s or End Users’ passwords, user names, and/or account numbers will be deemed to have been sent by Customer. Customer shall use reasonable efforts to prevent unauthorized access to or use of the Audioshake Platform and shall promptly notify Audioshake of any unauthorized access or use of the Audioshake Platform and any loss or theft or unauthorized use of Customer’s or any End User’s password or name and/or account number.
4. Confidentiality
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Audioshake includes non-public information regarding features, functionality and performance of the Audioshake Platform. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance under this Agreement or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
5. Customer Data
5.1 Security. Audioshake will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer’s data, that equal or exceed industry standards for like services.
5.2 Privacy Policy. Collection and processing of End User data is governed by the Audioshake Privacy Policy available at https://www.audioshake.ai/privacy-policy and incorporated herein by this reference.
5.3. Analytics. Audioshake shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Audioshake Platform and related systems and technologies (including, without limitation, Content and information and data derived therefrom). Audioshake may (i) use such information and data to improve and enhance the Audioshake Platform and for other development, diagnostic and corrective purposes in connection with the Audioshake Platform and other Audioshake offerings, and (ii) use and/or disclose such data in aggregate or other de-identified form in connection with its business.
6. Fees and Taxes
6.1 Fees. Customer shall pay all Fees specified in an Order Form. Except as otherwise specified herein or in an Order Form: (a) subscription Fees are based on the plan purchased and not actual usage; (b) payment obligations are non-cancelable, and (c) Fees are non-refundable. Unless otherwise specified in an Order Form, payment for any Fees will be due within thirty (30) days of the date of invoice.
6.2 Late Payments. Except with respect to charges then under reasonable and good faith dispute, any payment not received by the due date shall accrue interest at 1.5% per month, or the maximum rate permitted by applicable law, whichever is less.
6.3 Suspension of Platform Access. In the event of late payments, in addition to any other rights and remedies (including the termination rights set forth in this Agreement), Audioshake reserves the right to suspend Customer’s access to the Audioshake Platform without liability to Audioshake, until Customer’s account is paid in full.
6.4 Taxes. Customer is responsible for all sales, use, value added, withholding or other taxes or duties, payable with respect to Customer’s purchases hereunder, other than Audioshake’s income taxes. If Audioshake pays any such taxes on Customer’s behalf, Customer agrees to reimburse Audioshake for such payment unless Customer provides Audioshake with a valid exemption certificate authorized by the appropriate taxing authority.
7. Proprietary Rights
7.1 Audioshake Platform. As between the parties, Audioshake shall retain all rights, title and interests in and to the Audioshake Platform and Enhancements, including all intellectual property rights arising from any suggestions, enhancement requests, recommendations or other feedback provided by Customer or End Users relating to the operation of the Audioshake Platform. Customer hereby makes all assignments to achieve the foregoing ownership. Audioshake reserves all rights not expressly granted herein.
7.2 Restrictions. Customer shall not: (i) modify, translate, or create derivative works based on the Audioshake Platform; (ii) create any link to the Audioshake Platform or frame or mirror any content contained or accessible from the Audioshake Platform, (iii) reverse engineer, de- compile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Audioshake Platform (except to the extent such restrictions are prohibited under applicable law); or (iv) access the Audioshake Platform for the purpose of building a competitive product or service.
8. Content; Indemnification
8.1 Ownership. As between Customer and Audioshake, Customer shall retain all rights, title and interests in and to all Content. Customer hereby grants Audioshake a limited license to reproduce, process and edit the Content solely as necessary for Customer’s use of the Audioshake Platform.
8.2 Warranty. Customer hereby represents and warrants that (i) Customer has all rights required to upload the Content to the Audioshake Platform and to process the Content through the Audioshake Platform, and (ii) the Content does not and will not infringe on the rights of any third party or violate any applicable laws or regulations.
8.3 Indemnity. Customer shall defend, indemnify, and hold Audioshake, its affiliates, officers, employees and agents harmless from and against any third-party claims, actions, proceedings, damages, costs, liabilities, losses and expenses (including, without limitation, reasonable attorneys fees) arising out of or related to: (i) misuse of the Audioshake Platform; or (ii) any breach of this Agreement, including, without limitation, any breach of Section 8.2 above, or violation of any applicable laws, rules or regulations.
9. Term and Termination
9.1 Term. The term of this MSA will commence on the Effective Date and, unless terminated earlier in accordance with the terms hereof, will remain in effect until one (1) year following the date that all Order Forms hereunder have expired or have been terminated (“Term”). Accordingly, termination or expiration of an Order Form shall not terminate this MSA or result in its expiration; provided, however, that in the event that an Order Form expires or is terminated while no other Order Form is in effect, this MSA shall automatically terminate one (1) year following the termination date or expiration date of such Order Form unless the parties execute another Order Form before the end of such one (1)-year period.
9.2 Termination for Cause. This MSA may be terminated by either party for cause upon thirty (30) days written notice of breach to the other party, if the other party has materially breached this MSA or any Order Form, and such breach remains uncured at the expiration of such period.
9.3 Termination of Free Trial. Audioshake may terminate the Free Trial in its sole discretion at any time.
9.4 Surviving provisions. Sections 4, 5.3, and 7 through 13, and any accrued rights to payment, shall survive termination or expiration of this MSA or of any Order Form for any reason.
10. Warranty Disclaimer
EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, NEITHER AUDIOSHAKE NOR ITS LICENSORS MAKE ANY WARRANTY REGARDING THE AUDIOSHAKE PLATFORM OR ANY OTHER ITEMS OR SERVICES PROVIDED IN CONNECTION THEREWITH, INCLUDING, WITHOUT LIMITATION REGARDING THE RELIABILITY, TIMELINESS, AVAILABILITY, SECURITY, COMPATIBILITY, ACCURACY OR COMPLETENESS OF THE APPLICATION. AUDIOSHAKE AND ITS LICENSORS HEREBY DISCLAIM ANY IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
11. Limitation of Liability
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT OR OTHERWISE, EXCEPT FOR BODILY INJURY, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY RELATED TO THE SUBJECT MATTER HEREOF FOR ANY (I) INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, (II) INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA, OR (III) LOST PROFITS OR COST OF PROCUREMENT OF SUBSTITUTE TECHNOLOGY OR SERVICES, EVEN IF SUCH PARTY HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY RELATED TO THE SUBJECT MATTER HEREOF EXCEED THE AMOUNTS PAID OR PAYABLE BY CUSTOMER HEREUNDER DURING THE SIX-MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY.
12. Arbitration
The parties agree that any and all disputes or controversies of any nature between them arising at any time shall be determined by binding arbitration in accordance with the Commercial Arbitration Rules of the AAA before a single neutral arbitrator (“Arbitrator”) in San Francisco, California. The Arbitrator shall be mutually agreed upon by the parties; if the parties are unable to agree on an Arbitrator, the Arbitrator shall be appointed by the AAA. The Arbitrator shall determine how all expenses relating to the arbitration shall be paid, including without limitation, the respective expenses of each party, the fees of the arbitrator and the administrative fee of the American Arbitration Association. Any final outcome of such arbitration shall be final and binding as to all matters of substance and procedure, and may be enforced by a petition to any court of competent jurisdiction located in the State of California, which may be made ex parte, for confirmation and enforcement of the award. In addition, either party may seek equitable, non-monetary relief at any time in any court of competent jurisdiction located in the State of California without thereby waiving its right to arbitration of any dispute or controversy. All proceedings shall, to the extent permitted by law, be closed to the public and confidential and all records relating thereto shall be permanently sealed, except as necessary to obtain court confirmation of the arbitration award.
13. Miscellaneous
This Agreement shall be governed by the laws of the State of California, without regard to conflicts of laws provisions thereof. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This MSA and any Order Forms accepted by an authorized representative of Audioshake constitute the entire agreement and understanding between Customer and Audioshake with respect to the subject matter hereof and supersede any prior or contemporaneous oral or written negotiations, understandings or agreements. No changes or modifications or waivers to this Agreement will be effective unless in writing and signed by both parties. All notices under this Agreement shall be in writing, and shall be deemed given when personally delivered, when sent by confirmed email, or three days after being sent by prepaid certified or registered U.S. mail. Neither party may assign this Agreement nor any portion thereof to any third party without the other party’s prior written consent, provided that no such consent shall be required for assignment to a successor to all or substantially all of the assigning party’s business or assets. In any action to enforce rights or obligations under this Agreement, the prevailing party shall be entitled to recover costs and reasonable attorneys’ fees. BY ENTERING INTO THIS AGREEMENT, CUSTOMER EXPRESSLY WAIVES THE RIGHT TO PARTICIPATE IN A CLASS ACTION AGAINST AUDIOSHAKE OR ITS LICENSORS.
Any questions, complaints or claims with respect to the Application should be directed to AUDIOSHAKE, Inc, Attn.: Customer Support, info@audioshake.ai.
AudioShake® is a registered trademark owned by AudioShake, Inc.