Terms of Services Agreement: PUBLISHERS
This Terms of Services Agreement, including the Order Form attached hereto and incorporated by reference herein (the “Agreement”), is entered into by and between content providers who wish to access the Audio Rhema’s service as defined below (“Publisher”) and Audio Rhema, Inc., a Delaware corporation, with offices located at 19 Kris Court, Newark, DE 19702 (“Audio Rhema”).
WHEREAS, Audio Rhema provides storage, hosting, publishing, and distribution services at the direction of content providers that seek to make their content available to end users.
WHEREAS, Publisher desires Audio Rhema to store, host, publish, distribute, promote, or otherwise make available its contents of audio sermons or other messages, web pages, and other multi-media sources to end users worldwide via the Audio Rhema Services (as defined below).
NOW, THEREFORE, in consideration of the mutual covenants set forth herein, Audio Rhema and Publisher hereby agree as follows:
1. Audio Rhema Services.
1.2 Audio Rhema Account. To access the Audio Rhema Services, Publisher must create an Audio Rhema account associated with a valid e-mail address on Audio Rhema’s Publisher Dashboard. Publisher may only create one account per email address. Publisher is responsible for all activities that occur under its account, regardless of whether the activities are undertaken by Publisher, Publisher’s employees or a third party (including Publisher’s contractors or agents). Except to the extent caused by Audio Rhema’s breach of this Agreement, Audio Rhema and its affiliates are not responsible for unauthorized access to Publisher account. Publisher will contact Audio Rhema immediately if Publisher believes an unauthorized third party may be using its account or if its account information is lost or stolen.
1.3 Changes to Audio Rhema Services. Audio Rhema may change, discontinue, or deprecate any of the Audio Rhema services in whole or in part or change or remove features or functionality of the Audio Rhema Services from time to time. Audio Rhema will notify Publisher of any material change to or discontinuation of the Audio Rhema Services.
2. Publisher Content.
2.1 Publisher Status: You may only use the Audio Rhema Services as indicated in Section 1 of this Agreement if you have met all of the following conditions:
(b) You must maintain an active account with the Audio Rhema Publisher Dashboard.
2.2 Publisher Content. Publisher is solely responsible for the development, maintenance, use and delivery to Audio Rhema of Publisher Content. Publisher shall upload or electronically transmit Publisher Content directly to the self-management platform operated by Audio Rhema with reasonably necessary support from Audio Rhema. Publisher is solely responsible for: (a) the technical operation of Publisher Content, including ensuring that Publisher Content is compatible with then-current APIs for that Audio Rhema Service; (b) made available Publisher Content to Audio Rhema in formats designated by Audio Rhema; (c) any claims relating to Publisher Content; and (d) properly handling and processing notices sent to Publisher (or any of Publisher affiliates) by any person claiming that Publisher Content violate such person’s rights, including notices pursuant to any applicable Laws.
3. Grant of Rights.
3.1 Publisher Content License. Publisher hereby grants Audio Rhema a non-exclusive, irrevocable license to store, host, transmit, copy, publish, distribute, display, excerpt, promote, and otherwise use and make available the Publisher Content to End Users in the Territory by all means of electronic distribution available now or in the future. The intent of such grant of license is to allow Audio Rhema to (i) host Publisher Content on servers designated by Audio Rhema; (ii) index Publisher Content (iii) display, publish, distribute or sublicense the Publisher Content, in whole or in part, on the Audio Rhema Sites or Audio Rhema Apps; (iv) to promote, advertise and market Publisher Content, and (v) make continuing improvements to Audio Rhema Services. Audio Rhema may exercise any ancillary rights relating to Publisher Content that are reasonably necessary to effect the intent of the grants of licenses contained in this Agreement.
3.3 Brand Features License. Publisher grants to Audio Rhema a limited, non-exclusive, worldwide, royalty-free license to use Publisher’s trademarks, trade names, name, designs and logos, including all of the foregoing pertaining to Publisher Content (the foregoing being “Brand Features,” and with respect to Publisher, “Publisher Brand Features”) for use in connection with Publisher Content and in order to fulfill its obligations under this Agreement, and, with prior approval from Publisher for use in presentations, marketing materials, financial reports, press releases and customer lists (which includes, without limitation customer lists posted on Audio Rhema Sites or Audio Rhema Apps and screen shots of Publisher Content contained in Audio Rhema Services).
3.4 Reservations of Rights. Subject to the rights granted in this Agreement, Publisher retains all right, title and interest in and to Publisher Content and Publisher Brand Features. Subject to Publisher’s rights in such Content, Audio Rhema retains all right, title and interest in and to all technology, Content, information, services, Audio Rhema Brand Features and other intellectual property used in connection with Audio Rhema Services, Audio Rhema Sites or Audio Rhema Apps. Without limiting the foregoing, each party recognizes that any uses of the other’s (or its affiliates’) Brand Features in connection with this Agreement, and goodwill associated with such uses, will inure solely to the party owning such Brand Features.
4. Hosting, Storage, Indexing, Publishing and Distribution. Except as set forth in Section 2 above and provided that Publisher is in compliance with its obligations hereunder, Audio Rhema shall store Publisher Content on servers designated by Audio Rhema, index Publisher Content, host at Publisher’s direction of Publisher Content, display or otherwise make available Publisher Content on Audio Rhema Sites and Audio Rhema Apps and allow End Users to download and access Publisher Content, as set forth in this Agreement. Publisher Content will be hosted on servers that are designated by Audio Rhema and are protected by firewalls. Audio Rhema provides free storage and hosting up to 10 GB. after Publisher uses up the free 10 GB storage, additional storage may be purchased from Audio Rhema.
5. Security Measures.
5.1 Backup. Publisher is responsible for properly configuring and using the Audio Rhema Services and taking its own steps to maintain appropriate security, protection and backup of Publisher Content, which may include the use of encryption technology to protect Publisher Content from unauthorized access and routine archiving Publisher Content. Audio Rhema log-in credentials and private keys generated by the Audio Rhema Services are for Publisher’s internal use only and Publisher may not sell, transfer or sublicense them to any other entity or person, except that Publisher may disclose its private key to its agents and subcontractors performing work on its behalf.
5.2 End User Violations. Publisher will be deemed to have taken any action that Publisher permits, assists or facilitates any person or entity to take related to this Agreement, Content or use of the Audio Rhema Services. Publisher is responsible for End Users’ use of Publisher Content and the Audio Rhema Services. Publisher will ensure that all End Users comply with its obligations under this Agreement and that the terms of its agreement with each End User are consistent with this Agreement. If Publisher becomes aware of any violation of its obligations under this Agreement by an End User, Publisher will immediately terminate such End User’s access to Publisher Content and the Audio Rhema Services.
6. Withdrawals or Temporary Suspension.
6.1 Withdrawal by Publisher. Publisher may remove any of Publisher Content from future downloads on Audio Rhema’s App by logging into its Audio Rhema account and selecting Publisher Content that Publisher desires to unpublish. However, content will still remain available to anyone who has already downloaded it.
6.2 Withdrawal or Temporary Suspension by Audio Rhema. While Audio Rhema will periodically monitor Publisher Content, Audio Rhema may (a) temporarily suspend Publisher or any End User’s right to access or use any portion or all of the Audio Rhema Services, or (b) withdraw from, not display or cease displaying that Publisher Content on the Audio Rhema Sites, Audio Rhema Apps, and/or from Audio Rhema Services entirely with no liability to Audio Rhema, if Audio Rhema is notified by Publisher or otherwise becomes aware and determines in its sole discretion that (A) Publisher Content or any portion of Publisher Content or Publisher Brand Features: (i) violates the intellectual property rights or any other rights of any third party, (ii) violates any applicable Law or is subject to an injunction, (iii) violates Audio Rhema’s hosting policy as determined in Audio Rhema’s sole discretion, (iv) is being distributed by Publisher improperly, or (v) may create liability for Audio Rhema, or (B) the display of Publisher Content is impacting the integrity of Audio Rhema servers (i.e., End Users are unable to access Publisher Content or otherwise experience difficulty), or (C) Publisher or any End User is, in breach of this Agreement.
7. Representations and Warranties. Publisher represents, warrants and covenants that:
7.1 Publisher is at least the legal age of majority and that Publisher is able to form a legally binding contract. If Publisher is a business or other legal entity and not an individual, then the individual entering into this Agreement on Publisher behalf represents that he or she has all necessary legal authority to bind Publisher to this Agreement;
7.2 Publisher has the full right, power, and authority to enter into and fully perform this Agreement;
7.3 Before providing Audio Rhema or any End User any Content, Publisher will have obtained the rights necessary for the exercise of all rights granted under this Agreement, and Publisher will be solely responsible for and will pay any licensors or co-owners any royalties or other monies due to them related to such Content;
7.5 Publisher Content may be imported to, exported from, and lawfully used in the United States, all countries in which Audio Rhema provides Audio Rhema Services, and all countries in which Publisher has authorized sales to End Users (without the need for Audio Rhema to obtain any license or clearance or take any other action) and Publisher Content is in full compliance with all applicable Laws governing imports, exports; and
7.6 Publisher will include any attributions, copyright information and other notices, terms and conditions that may be required to be provided to End Users based on Publisher’s use of third party intellectual property in any of Publisher Content.
8.1 Audio Rhema currently only provides content free of charge (at a list price of $0.00) to the End User, hence no Royalty is payable to the Publisher for content.
8.2 Audio Rhema may alter its services in future to enable Publishers to offer content for sale, at which time the terms and conditions for sale and payment, including royalties due, will be determined and communicated.
9. Term and Termination.
9.1 Term. The term of this Agreement will commence on the date when Publisher’s account is activated by Audio Rhema and will remain in effect until terminated by Publisher or Audio Rhema in accordance with Section 9.2.
(a) Termination for Convenience. Publisher may terminate this Agreement for any reason by: (i) providing Audio Rhema notice and (ii) closing Publisher account for all Audio Rhema Services for which Audio Rhema provides an account closing mechanism. Audio Rhema may terminate this Agreement for any reason by providing Publisher 30 days advance notice.
(b) Termination for Cause.
(i) By Either Party. Either party may terminate this Agreement for cause upon 30 days advance notice to the other party if there is any material default or breach of this Agreement by the other party, unless the defaulting party has cured the material default or breach within the 30-day notice period.
(ii) By Audio Rhema. Audio Rhema may also terminate this Agreement immediately upon notice to Publisher (A) for cause, if any act or omission by Publisher or any End User results in a suspension or withdrawal described in Section 6, (B) if Audio Rhema’s relationship with a third party partner who provides software or other technology Audio Rhema uses to provide the Audio Rhema Services expires, terminates or requires Audio Rhema to change the way Audio Rhema provide the software or other technology as part of the Audio Rhema Services, (c) if Audio Rhema believes providing the Audio Rhema Services could create a substantial economic or technical burden or material security risk for Audio Rhema, (D) in order to comply with the Law or requests of governmental entities, or (E) if Audio Rhema determines use of the Audio Rhema Services by Publisher or any End Users or Audio Rhema’s provision of any of the Audio Rhema Services to Publisher or any End Users has become impractical or unfeasible for any legal or regulatory reason.
9.3. Effect of Termination. Upon any termination of this Agreement: (i) all Publisher’s rights under this Agreement immediately terminate; (ii) Publisher remains responsible for all fees and charges Publisher has incurred through the date of termination, including fees and charges for in-process tasks completed after the date of termination; and (iii) Sections 2, 3 (except for the rights granted to Publisher), 5, 7, 8.4, 9.3, 10, 11, 12, 13, and 14 will continue to apply in accordance with their terms. Upon any termination of this Agreement, Audio Rhema shall use commercially reasonable efforts to cease display of Publisher Content to End Users within 30 days of the effective date of termination.
10. Disclaimer of Warranty. THE AUDIO RHEMA SERVICES ARE PROVIDED “AS IS.” AUDIO RHEMA AND ITS AFFILIATES AND LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE AUDIO RHEMA SERVICES OR THE THIRD PARTY CONTENT, INCLUDING ANY WARRANTY THAT THE AUDIO RHEMA SERVICES OR THIRD PARTY CONTENT WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, OR THAT ANY CONTENT, INCLUDING PUBLISHER CONTENT OR THE THIRD PARTY CONTENT, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. EXCEPT TO THE EXTENT PROHIBITED BY LAW, AUDIO RHEMA AND AUDIO RHEMA AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.
11.1 Publisher Indemnity. Publisher will indemnify, defend and hold harmless Audio Rhema and its Affiliates, and any of their respective directors, officers, employees, agents, contractors and licensees from and against any and all claims, demands, causes of action, debt or liability, including reasonable attorneys fees (“Losses”) incurred in connection with any third party claim based upon or otherwise arising out of: (a) Audio Rhema’s authorized use of Publisher Content, Publisher Brand Features, or any other materials made available by Publisher to Audio Rhema under this Agreement; (b) a claim that Publisher Content is or contains any content that is defamatory, obscene, or otherwise illegal; (c) a claim that Publisher Content violates or encourages violation of any applicable Law; or (d) a dispute between Publisher and any End User.
11.2 Audio Rhema Indemnity. Audio Rhema will indemnify, defend and hold harmless Publisher and its affiliates and its and their directors, officers, employees, agents, contractors and licensees from and against any and all Losses arising from any third-party claim based upon or otherwise arising out of Publisher’s authorized use of any Audio Rhema Brand Feature. Notwithstanding the foregoing, in no event shall Audio Rhema have any obligations or liabilities under this Section 11.2 arising from any content, technology, information or data provided or made available to Audio Rhema by Publisher, End Users, or any third parties.
11.3 Procedure. The obligation to indemnify will be contingent upon the indemnified party: (a) providing the indemnifying party with prompt written notice for any claim for which indemnification is sought, (b) cooperating fully with the indemnifying party, and (c) allowing the indemnifying party to control the defense and settlement of such claim (provided the indemnifying party will not settle or resolve any such claim in a manner that imposes any liability or obligation on the indemnified party or affects the indemnified party’s rights in connection therewith without the advance written approval of the indemnified party, which will not be unreasonably withheld or delayed). The indemnified party may, at its own expense, assist in the defense if it so chooses. Notwithstanding the foregoing, the failure to provide such prompt notice of an indemnification claim shall diminish each party’s indemnification obligations only to the extent the other party is actually prejudiced by such failure.
12. Limitation of Liability. EXCEPT FOR (I) AMOUNTS PAYABLE TO THIRD PARTIES PURSUANT TO THE PARTIES’ INDEMNIFICATION OBLIGATIONS UNDER SECTION 11, AND (II) BREACHES OF CONFIDENTIALITY UNDER SECTION 13.1: (x) NEITHER PARTY HERETO SHALL BE LIABLE TO THE OTHER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, LIQUIDATED, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OR PENALTIES INCLUDING, BUT NOT LIMITED TO, LOSSES OF BUSINESS, REVENUE OR ANTICIPATED PROFITS AND (y) IN NO EVENT SHALL EITHER PARTY’S TOTAL AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE NET AMOUNT SUCH PARTY HAS ACTUALLY RECEIVED AND RETAINED (AFTER ACCOUNTING FOR ALL DEDUCTIONS, AND OTHER OFFSETS PROVIDED FOR UNDER THE AGREEMENT) DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM ARISES. THE FOREGOING LIMITATIONS OF LIABILITY WILL APPLY REGARDLESS OF THE CAUSE OF ACTION UNDER WHICH SUCH DAMAGES ARE SOUGHT, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, WHETHER OR NOT THE PARTIES WERE OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. The parties agree that (i) the mutual agreements made in this Section reflect a reasonable allocation of risk and (ii) that each party would not enter into the Agreement without these limitations on liability.
13. General Provisions.
(a) “Confidential Information” means information that one party discloses to the other party under this Agreement and that is marked as confidential or would normally under the circumstances be considered confidential information. Confidential Information does not include information that the recipient already knew, that becomes public through no fault of the recipient, that was independently developed by the recipient, or that was lawfully given to the recipient by a third party.
(b) Confidentiality Obligations. The recipient will not disclose the Confidential Information, except to affiliates, employees, agents or professional advisors who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential. The recipient will ensure that those people and entities may use the received Confidential Information only to exercise rights and fulfill obligations under this Agreement, while using reasonable care to keep it confidential. The recipient may also disclose Confidential Information when required by Law after giving reasonable notice.
(c) Publicity. Neither party may make any public statement regarding this Agreement without the other’s prior written approval, except when required by Law after giving reasonable notice to the other.
(a) To Publisher. Audio Rhema may provide any notice to Publisher under this Agreement by: (i) posting a notice on the Audio Rhema Site; or (ii) sending a message to the email address then associated with Publisher account. Notices that Audio Rhema provides by posting on the Audio Rhema Site will be effective upon posting and notices that Audio Rhema provides by email will be effective when Audio Rhema sends the email. It is Publisher’s responsibility to keep its email address current. Publisher will be deemed to have received any email sent to the email address then associated with Publisher account when Audio Rhema sends the email, whether or not Publisher actually receives the email.
(b) To Audio Rhema. To give Audio Rhema notice under this Agreement, Publisher must contact Audio Rhema by personal delivery, overnight courier or registered or certified mail to 19 Kris Court, Newark, DE 19702. Audio Rhema may update the address for notices to Audio Rhema by posting a notice on the Audio Rhema Site. Notices provided by personal delivery will be effective immediately. Notices provided by facsimile transmission or overnight courier will be effective one business day after they are sent. Notices provided registered or certified mail will be effective three business days after they are sent.
(c) Language. All communications and notices to be made or given pursuant to this Agreement must be in the English language.
13.3 Assignment. Publisher will not assign this Agreement, or delegate or sublicense any of its rights under this Agreement, without its prior written consent. Any assignment or transfer in violation of this Section 13.3 will be void. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.
13.4 Severability. If any term (or part of a term) of this Agreement is invalid, illegal or unenforceable, the rest of the Agreement will continue in force unaffected.
13.5 Independent Contractors; Non-Exclusive Rights. Publisher and Audio Rhema are independent contractors, and neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other. This Agreement does not affect any rights that either party would have had, or shall have, independent of the Agreement, including but not limited to rights under the applicable Laws.
13.6 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
13.7 Equitable Relief. Subject to Section 13.10 below, nothing in this Agreement will limit either party’s ability to seek equitable relief.
13.8 No Waivers. The failure by Audio Rhema to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit Audio Rhema right to enforce such provision at a later time. All waivers by Audio Rhema must be in writing to be effective.
13.9 Severability. If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to effect and intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement but the rest of the Agreement will remain in full force and effect.
13.10 Dispute Resolution. The laws of the State of Delaware, without reference to conflict of law rules, govern this Agreement and any dispute of any sort that might arise between Publisher and Audio Rhema. The United Nations Convention for the International Sale of Goods does not apply to this Agreement. Any dispute or claim relating in any way to Publisher’s use of the Audio Rhema Services, or to any products or services sold or distributed by Audio Rhema will be resolved by binding arbitration, rather than in court, except that Publisher may assert claims in small claims court if Publisher claims qualify. The Federal Arbitration Act and federal arbitration law apply to this Agreement. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would. To begin an arbitration proceeding, Publisher must send a letter requesting arbitration and describing its claim to Audio Rhema at its address indicated under 13.2(b) of this Agreement. The arbitration will be conducted by the American Arbitration Association (AAA) under its rules. Payment of filing, administration and arbitrator fees will be governed by the AAA’s rules. If for any reason a claim proceeds in court rather than in arbitration Audio Rhema and Publisher waive any right to a jury trial. Notwithstanding the foregoing, Audio Rhema and Publisher both agree that Publisher or Audio Rhema may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
13.11 Force Majeure. Audio Rhema and its affiliates will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond our reasonable control, including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
13.12 Amendment. Any amendment must be in writing signed by both partiesand expressly state that it is amending this Agreement.
13.13 Counterparts. The parties may execute this Agreement in counterparts, including facsimile, PDF, and other electronic copies, which taken together will constitute one instrument.
13.14 Entire Agreement. This Agreement sets out all terms agreed between the parties’ and supersedes all previous or contemporaneous agreements between the parties relating to its subject matter.
As used in this Agreement, the following terms have the meanings ascribed to them below.
“Account Information” means information about Publisher that Publisher provides to Audio Rhema in connection with the creation or administration of Publisher Audio Rhema account. For example, Account Information includes names, usernames, phone numbers, email addresses and billing information associated with Publisher Audio Rhema account.
“Audio Rhema Apps” means software applications developed by Audio Rhema, together with their enhancements, upgrades, updates, bug fixes, new versions and other modifications and amendments.
“Audio Rhema Services” means Audio Rhema’s products and services that are accessible through and otherwise provided by various computer and electronic technologies, networks and systems, including without limitation, Internet-based services accessible through the Audio Rhema Sites or Audio Rhema Apps.
“Audio Rhema Site” means any web site located at an Audio Rhema-owned domain, including all subdomains and directories thereof, and all successor sites thereto.
“Content” means data, text, audio, video, images, logos, marks, symbols or other multi-media sources.
“End User” means any individual or entity that directly or indirectly through another user: (a) accesses or uses Publisher Content; or (b) otherwise accesses or uses the Audio Rhema Services under Publisher account. The term “End User” does not include individuals or entities when they are accessing or using the Audio Rhema Services or any Content under their own Audio Rhema account, rather than Publisher account.
“Law” means any applicable laws, rules, regulations, orders, and other requirements of any governmental agencies.
“Publisher Content” means Content that Publisher or any End User transfers to Audio Rhema for storage, hosting, publishing, distribution or otherwise made available by the Audio Rhema Services in connection with Publisher Audio Rhema account and any computational results that Publisher or any End User derive from the foregoing through their use of the Audio Rhema Services. Publisher Content does not include Account Information.
“Term of Use” means the terms and conditions for use of Audio Rhema Sites and Audio Rhema Apps located at http://audiorhema.com, as it may be updated by Audio Rhema from time to time.
“Territory” means worldwide subject to Section 3.2.
5th June 2017