Please read these Terms of Service carefully before any Use of the Products.
Your Use constitutes an unconditional agreement to be bound by these Terms of Service. IF YOU DO NOT ACCEPT THE TERMS OF SERVICE YOU ARE PROHIBITED FROM USING THE PRODUCTS. The Products are available in different Editions, including unpaid and paid options. Certain rights, obligations and restrictions vary by Edition. Unless otherwise stated, terms apply to all Editions.
- “Adaptation” means any work that modifies, adds to, deletes from, edits, affects the function of or is based on a Product or any previous Adaptation thereof, including but not limited to all plug-ins and other derivative works as such term is defined by the Copyright Act.
- “Claims” means claims, suits, demands and actions by third parties.
- “Company” means Mobile Player
- “Content” means media including videos, images, graphics, animations, sounds, text and music and any related submissions (e.g. viewer comments).
- “Documentation” means any technical or other specifications or documentation that Company may provide to Publisher for use in connection with Products.
- “Distribute” means to sell, transfer, assign, circulate or make available to any third party, or the facilitation of the foregoing.
- “Edition” means a particular edition of Mobile Player, including the Unpaid Edition, Premium Edition, Enterprise Edition.
- “Effective Date” means the earliest date a Product is Used by Publisher unless otherwise provided on an applicable Order Form.
- “Fee” means the amount payable to the Company for Use of a Product.
- “Mobile Player” means Publisher-hosted of the Mobile Player software and any plug-ins and updates (other than new major versions) provided by Company therefor.
- “Licensing Key” means certain code in the Products that permits Company to verify that Use of a Product is authorized.
- “Licensed Programs” means Publisher-hosted versions of Mobile Player and SDK.
- “License Scope” means the features authorized for a particular Edition, including advertising, the maximum volume of data, maximum number of domains, maximum Plays, maximum API requests and authorization to Use the SDK, OEM.
- “Losses” means damages, losses, costs and liabilities, including attorney and professional fees, arising from a Claim.
- “OEM” means incorporation of a Product into any goods or services other than Publisher’s websites, including SDK Applications and other goods and services.
- “Operating System” means Apple iOS and/or Google Android.
- “Order Form” is an agreement between Company and Publisher setting forth custom pricing and terms for the use of Products and includes any contemporaneous Addendum thereto. In the event of any conflict between the terms of an Order Form and these Terms of Service, the Order Form shall take precedence.
- “Play” means each instance of Content streamed, in whole or in part, through the Products. For purposes of the License Scope, Content Plays are not cumulative with SDK Plays.
- “Products” means the Licensed Programs and Services (as applicable to the relevant Edition).
- “Publisher” or “You” means you and any entity on whose behalf you Use Products.
- “Publisher Information” means personal and non-personal information about Publisher including but not limited to Publisher’s name, address, email address, telephone number, likeness, and, if Publisher transacts business with the Company, financial information such as payment method (valid credit card number, type, expiration date or other financial information).
- “Purpose” means (i) Use to facilitate Content playback and streaming on Publisher’s websites and, only with respect to the Enterprise Edition, (ii) Use of the SDK to develop and Distribute SDK Applications and (iii) other OEM Use.
- “SDK” means the Mobile Player Software Development Kits for iOS, including all components thereof (Documentation, code, tools, libraries, data, files and materials) and all updates thereto.
- “SDK Applications” means application software for Operating Systems incorporating the Mobile Player.
- “Terms of Service” or “TOS” means this document and any applicable, mutually ratified Order Form and/or Addendum.
- “Unpaid Edition” means any Edition of Mobile Player for which Fees are not required.
- “Use” means operating, accessing, downloading, installing, integrating or providing Content through a Product or Adaptation.
These Terms of Service apply to Mobile Player versions numbered 1.0-10.0 only. All other versions are excluded and subject to other licenses. Publisher’s rights and licenses to Use Products are limited to the Editions for which it has enrolled, is eligible and has paid all Fees (for paid Editions) in accordance with these Terms of Service. Any Use of the Products other than as permitted by these Terms of Service is strictly prohibited. The Company reserves all rights and licenses not expressly granted hereunder.
The License Scope varies by Edition and the licenses granted hereunder are limited accordingly. Unless otherwise provided, licenses are personal to Publisher for its own Use. If you would like more information about upgrading to the Enterprise Edition, please contact us at mobileplayer.io/contact/ or sales (at) mobileplayer.io
Subject to the terms and conditions of these Terms of Service and Publisher’s observance thereof, Company hereby grants to Publisher and Publisher hereby accepts a non-exclusive, non-transferable, non-sublicensable, limited right and license to Use, access and install the Products, solely for the Purpose.
Enterprise Edition is further licensed to (a) Use, access, integrate and install the SDK for use in connection with the Purpose, (b) make and distribute Documentation internally for use in connection with the Purpose, (c) publicly Distribute SDK Applications for the Operating Systems, and (d) operate and allow end users of SDK Applications to operate Mobile Player incorporated into such SDK Applications.
Use of Unpaid Editions in connection with advertising of any kind is prohibited. Unpaid Edition Publishers are limited to one (1) account.
1.0 is free to use commercially.
Publishers who have not purchased strictly prohibited from using the Products in any manner to display advertisements. Such prohibition includes actions such as (i) the making or use of any Adaptation that enables any type of advertisement to be shown in, on or around the Products (e.g., a skin), (ii) interoperation of the Products with any software that serves advertisements and (iii) adding advertisements to a playlist.
Publisher must create a username and password as well as provide an accurate email address and (except Unpaid Edition Publishers) name and mailing address. Publisher is strictly prohibited from: (i) providing false sign-up information, (ii) using a name, address or email address owned or controlled by another person with the intent to impersonate that person or (iii) providing an email address subject to any rights of a person other than Publisher without appropriate authorization. The Company reserves the right to refuse registration or cancel any account that it reasonably believes is in violation of the foregoing. Publisher shall be responsible for maintaining the confidentiality of its password and is liable for all activities that occur on its account. Publisher agrees to immediately notify the Company of any unauthorized use of Publisher’s username, password or other breach of security.
Publisher is authorized to make Adaptations reasonably necessary to exercise its rights under these Terms of Service, e.g., Adaptations to integrate Products into Publisher’s websites. All Adaptations created by Publisher are strictly for its own Use. The Company reserves the right to prohibit the Use of any Adaptation in its sole discretion.
OEM is authorized only in connection with the Enterprise Edition. Unpaid Edition and Premium Edition Publishers are strictly prohibited from incorporation of a Product into any goods or services.
Company may update the SDK at any time and is under no obligation to provide notice thereof. Updates may have features or functionality that differ from that of the current SDK. Company may identify certain updates as being critical by written notice (including e-mail to the address provided by Publisher). Publisher shall promptly incorporate such critical updates into its SDK Applications and, if such SDK Applications have been Distributed, shall provide a public update thereto no later than 5 (5) days after such notice unless a different period is specified by Company.
Publisher acknowledges that development for each Operating System may be subject to the applicable Operating System provider’s own rules, regulations, standards and requirements and that Company has no control or responsibility therefor. Publisher is solely responsible for its compliance with the foregoing and Company makes no representations or warranties of compatibility with any Operating System.
Except as specifically set forth herein, Publisher shall not Distribute, re-license, sell, lease, transfer, encumber, assign or make available for public use the Products or any Adaptation thereof. Any attempt to take any such actions is void, and will automatically terminate Publisher’s rights under these Terms of Service. Notwithstanding the foregoing, Publisher may duplicate the Licensed Programs and its own permitted Adaptations solely for its own use, provided, all copyright notices, disclaimers and other identifications on the Licensed Program must also be duplicated and displayed on any copies thereof.
The Company will not share personally identifiable information gathered from the Licensing Key or Statistics Plug-In with any third party without Publisher’s express written consent, provided, nothing herein shall limit the Company’s right to use and share aggregated, non-personally identifiable data. Publisher grants Company a limited, royalty-free license to use the information collected by the Licensing Key and Statistics Plug-In to facilitate the operation of Products, ensure compliance and for its internal business purposes.
These Terms of Service shall become effective on the Effective Date. For all Editions other than the Trial Edition, these Terms of Service shall remain effective for a period of one (1) year (the “Initial Term”) and, upon the conclusion of the Initial Term, shall automatically renew for additional successive one (1) year terms (each a “Renewal Term” and together with the Initial Term, the “Term”). The Trial Edition’s Term shall be mutually agreed by Publisher and Company and set forth on an applicable Order Form.
Either party may elect to not renew these Terms of Service by notifying the other prior to the expiration of then-current Initial Term or Renewal Term. Notice for the Enterprise Edition must be provided in writing no later than thirty (30) days prior to such expiration.
These Terms of Service are subject to termination by the Company immediately if (a) Publisher fails to timely pay a Fee, (b) Publisher violates any term of these Terms of Service, (c) the Company has a reasonable basis to believe that Publisher is not abiding by the spirit of these Terms of Service, (d) Publisher becomes insolvent, declares bankruptcy or a receiver or trustee is appointed for Publisher, (e) the Company has a reasonable basis to believe that Publisher is impairing the Company’s business, (f) Publisher is or becomes engaged in a business that is directly or indirectly competitive with the Company’s business or (g) Publisher exceeds the License Scope permitted for its Edition and Publisher fails to cure any of the foregoing within seven (7) days of notice thereof.
Enterprise Edition of Service shall not be terminable for convenience by either party. Company may terminate Unpaid Edition, Premium Edition and Terms of Service for its convenience on seven (7) days notice.
In the event of any termination by the Company pursuant to (a) – (g) above, the Company is under no obligation to provide a refund for the Fees received from Publisher or apply such fees to future services. In the event of the Company’s cancellation for convenience, Publisher shall be entitled to request a pro-rata refund of unused pre-paid Fees. In the event Publisher switches to a different Edition, any pre-paid Fee balance shall be applied towards the Fees due for such Edition until exhausted; no refund shall be available for Publishers switching to an Unpaid Edition.
Upon termination of these Terms of Service for any reason, Publisher shall immediately cease Using the Products and uninstall, delete and destroy any copies of the Licensed Programs. In the event any Products are no longer under Publisher’s control (such as SDK Applications already in the marketplace), Publisher shall use its best efforts to cause use of such Products to promptly cease, including updating SDK Applications and other OEM uses no later than ten (10) days after termination. Publisher shall continue to pay Fees until such Use ceases.
Upon termination, all rights, obligations and licenses of the parties shall cease, except that all obligations that accrued prior to the effective date of termination and remedies for breach of these Terms of Service shall survive. The provisions of the Sections titled Effects of Termination, Intellectual Property, Confidential Information, Fees and Payment, Representations and Warranties, Disclaimer, Limitation of Liability, Indemnity, Choice of Law and Jurisdiction, Injunctive Relief and Waiver of Breach shall also survive.
The Company shall provide reasonable technical support and maintenance for the Products in its sole discretion. Support Documentation is located at https://mobileplayer.io/support. The Company shall have no obligation to provide additional technical support, maintenance, updates or enhancements to the Products. All installation and maintenance of Products by Publisher shall be at the sole expense of Publisher. The Company is not responsible for performance issues caused by low-performance end-user computers, low-bandwidth end user Internet connections, periodic network congestion among network providers, low-bandwidth connectivity from redirected image and video sources, improperly configured campaigns and low-bandwidth connectivity from any Publisher Content servers. In the event the Company identifies slow performance due to its system, the Company shall use commercially reasonable efforts to restore the Services to acceptable performance levels. Publisher’s sole remedy for any disruption or failure to provide support shall be a pro rata refund of the Fee paid by Publisher for the relevant period.
The Company is the sole owner of all intellectual property rights pertaining to the Products, including but not limited to copyright, trademark and patent rights and all rights not expressly granted herein are reserved. If Publisher creates an Adaptation, Publisher shall obtain all intellectual property rights in and to the elements of such Adaptation created by Publisher and the Company shall retain all intellectual property rights in and to any elements of the Products incorporated in such Adaptation. Publisher is prohibited from creating any Adaptation that in any manner infringes the patents, trademarks, copyrights, trade secret rights or other rights of the Company or any third party.
The Company may periodically obtain Publisher Information from our partners and other third parties. The Company also may request information about Publisher’s interests and activities, gender, age and other demographic information. The Company may use the Publisher Information and Data to: deliver the Products; manage Publisher’s account; provide customer support; perform research and analysis about Publishers Use of or interest in Products or Content or the products, services or content of others; communicate with Publisher by email, postal mail, telephone and/or mobile devices about products or services that may be of interest to you either from the Company, our partners or other third parties; develop and display content and advertising tailored to your interests on our site and other sites; enforce our Terms of Service; manage our business; and perform functions otherwise described to you at the time of collection.
Fees are published at www.mobileplayer.io/pricing or provided on an applicable Order Form. Unless otherwise provided, Company may modify the Fees prior to the commencement of each Renewal Term. Company shall provide Enterprise Edition written notice of any such modification no later than sixty (60) days prior to such commencement.
Publisher agrees to timely pay all Fees due during the Term. Company reserves the right to suspend Publisher’s access to Products or Editions if Fees are not timely paid. Such suspension shall not obviate Publisher’s duty to pay all Fees due under any Order Form or Addendum or constitute termination of these Terms of Service absent Company’s notice of termination pursuant to the Termination section hereof. All Fees are non-refundable except as otherwise provided in these Terms of Service. Publisher shall be responsible to pay all taxes due in connection with the Fees and Publisher’s use of the Products.
Periodic (e.g. annual) Fees are billed in advance and payment and is due on receipt of invoice. Premium Edition Publishers must provide a valid form of payment (e.g. credit card, debit card, PayPal account) and accurate billing information, do hereby authorize the Company to charge all Fees incurred to the designated payment form and acknowledge that periodic Fees may be charged automatically and without separate authorization.
Enterprise Edition Publishers shall keep complete and accurate records of all Use during the Term and for 3 years thereafter. Company may periodically conduct audits of Enterprise Edition Publishers solely to confirm the accuracy of Fees paid and compliance with the applicable License Scope. Such audits shall be conducted no more than one (1) time per year, by an independent certified public accountant, at the place of business where Publisher customarily keeps such records, during normal business hours, and upon fifteen (15) days’ advance written notice. Company shall bear the full cost of all audits, provided, if an audit reveals that Fees have been underpaid or the License Scope has been exceeded by at least five percent (5%), Publisher shall, in addition to payment of any underpaid Fees and any other remedies due under these Terms of Service, reimburse Company for its professional fees and out-of-pocket expenses incurred in conducting such audit.
By using player, Publisher agrees to and hereby does grant, and does represent and warrant that it has the right to grant, the Company a royalty-free, fully paid up, worldwide license to use the Content solely in connection with the operation and provision of Services that entail the Company’s hosting, streaming or storage of such Content.
Publisher is solely responsible for any Content or other material that Publisher posts, uploads, submits or Distributes. The Company may review and delete any Content that violates the terms of this Section. Prohibited Content includes any Content that (i) infringes any copyright, trademark, patent, trade secret, right of publicity or other right of any person or entity, (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive, tortious, obscene, offensive, vulgar, pornographic, profane or is otherwise inappropriate as determined by the Company in its sole discretion, (iii) contains any virus, malicious code, Trojan horse or other program designed, intended or likely to disrupt, damage, limit or interfere with the proper function of any software, hardware or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of the Company or any person or entity, (iv) encourages illegal activity or (v) falsely suggests or implies sponsorship or endorsement by the Company.
Publisher shall not (i) interfere or attempt to interfere with the proper operation of the Products or any activities conducted through the Products, (ii) use any robot, spider or other device to retrieve, index, scrape, data mine or in any way gather information, Content or other materials from the Products, (iii) decipher, decompile, disassemble, reverse engineer, simulate or derive any source code or algorithms from the Products or use any of the foregoing to create any software or service similar to the Products, (iv) create any derivative work or modification of the Products other than Adaptations permitted by these Terms of Service or (v) license, sublicense, sell, encumber, rent, lease, Distribute, transfer or similarly exploit the Products.
Publisher represents and warrants that (i) if Publisher is an individual, Publisher is at least eighteen (18) years old, (ii) if Publisher is an entity, its consent to these Terms of Service has been duly ratified, (iii) all its Content conforms to the standards set forth in the Section of these Terms of Service titled Content and Restrictions on Use, (iv) all information provided during the registration process is true and accurate, (v) its Adaptations do not infringe the intellectual property rights of any third party and (vi) its Use of Products is in compliance with all applicable laws and regulations.
The Company warrants that it will provide Pro, Premium and Enterprise (but not Unpaid Editions) in a manner consistent with general industry standards reasonably applicable to the provision thereof. The Company does not warrant that the Products will be error-free or that any errors in the Products will be corrected.
EXCEPT AS OTHERWISE PROVIDED AND TO THE MAXIMUM EXTENT ALLOWED BY LAW, THE PRODUCTS ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS OTHERWISE PROVIDED, USE OF THE PRODUCTS IS AT PUBLISHER’S OWN RISK AND PUBLISHER IS SOLELY RESPONSIBLE FOR DETERMINING THE APPROPRIATENESS OF EXERCISING THE RIGHTS GRANTED UNDER THIS AGREEMENT AND ASSUMES ALL RISKS ASSOCIATED THEREWITH, INCLUDING BUT NOT LIMITED TO THE RISKS AND COSTS OF PROGRAM ERRORS, COMPLIANCE WITH APPLICABLE LAWS, DAMAGE TO OR LOSS OF DATA, PROGRAMS OR EQUIPMENT, SUITABILITY FOR HOSTING AND UNAVAILABILITY OR INTERRUPTION.
EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW OR TO THE EXTENT THAT ANY EXCLUSION OR LIMITATION OF ITS LIABILITY IS VOID, PROHIBITED OR UNENFORCEABLE, IN NO EVENT SHALL THE COMPANY BE LIABLE ON ANY LEGAL THEORY (A) FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES INCLUDING LOSS OF REVENUE, PROFITS OR GOODWILL, (B) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL, (C) FOR ANY LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USER OR COST OF PROCURING SUBSTITUTE TECHNOLOGY OR (D) DIRECT DAMAGES IN EXCESS OF THE TOTAL FEES PAID BY PUBLISHER TO THE COMPANY PURSUANT TO THESE TERMS OF SERVICE, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
Except as otherwise set forth in these Terms of Service, Publisher will indemnify, defend and hold harmless the Company from and against all Claims, and for all resulting Losses (including attorney’s fees) that result or arise from Claims, which in whole or in part, pertain to any Publisher Adaptation or arise from Publisher’s Use, reproduction, Distribution or other exploitation of the Products. Publisher will pay all amounts agreed to in a monetary settlement of the Claims and all Losses that result or arise from the Claims. Notwithstanding the foregoing, Publisher shall have no duty to indemnify or defend the Company from Claims which primarily allege that Products, as provided to Publisher by the Company and used in accordance with the terms hereof, infringe the copyright, patent or trademark rights of a third party.
Hosting and Streaming Services shall be subject to the Company’s published DMCA policy.
Publisher acknowledges that it may have access to certain confidential information of the Company, such as information concerning its business, plans, customers, technology and products (“Confidential Information”). Confidential Information will include all information in tangible or intangible form that is marked or designated as confidential or that, under the circumstances of its disclosure, should reasonably be considered confidential. Publisher agrees that it will not use Confidential Information in any way for its own account or the account of any third party, except as expressly permitted by, or required to achieve the purposes of, these Terms of Service, nor will it disclose to any third party (except as required by law or its attorneys, accountants and other advisors as reasonably necessary) any of the Confidential Information and it will take reasonable precautions to protect the confidentiality of such information, at least as stringent as it takes to protect its own Confidential Information. Upon termination or expiration of these Terms of Service for any reason, Publisher will return or destroy, at the Company’s request, all Confidential Information and all documents or media containing any such Confidential Information and any and all copies or extracts thereof.
Company shall be permitted to publicly identify Publisher as a user of the Products, including on Company’s websites and marketing materials. Publisher hereby grants Company a non-exclusive, non-transferable, non-sublicensable, royalty-free license during the Term to use Publisher’s name and marks solely for this purpose. Company agrees to state on all materials using Publisher’s marks that such marks are property of Publisher and to include the trademark registration symbol if applicable. All goodwill arising out of any use of any of the Publisher’s marks by Company will inure solely to the benefit of Publisher.
The parties hereto are independent contractors and nothing herein constitutes or creates an employer-employee, agency, joint venture or representative relationship between the parties.
Publisher agrees and certifies that it will not export or re-export, directly or indirectly, the Products contrary to the laws of the United States or any other country from or to which such export or re-export may occur.
If for any reason a court of competent jurisdiction finds any provision of these Terms of Service, or portion thereof, to be unenforceable, that provision of the Terms of Service shall be enforced to the maximum extent permissible so as to effectuate the intent of the parties, and the remainder of these Terms of Service shall continue in full force and effect.
These Terms of Service shall be governed by and construed in accordance with the laws of the State of New York (except that body of law controlling conflict of laws) and specifically excluding from application to this Agreement that law known as the United Nations Convention on Contracts for the International Sale of Goods. Each party irrevocably consents to the exclusive jurisdiction, forum and venue of the Commercial Division of the Supreme Court of the State of New York, New York County and the United States District Court for the Southern District of New York over any and all claims, disputes, controversies or disagreements between the parties or any of their respective subsidiaries, affiliates, successors and assigns under or related to these Terms of Service or the subject matter thereof.
Publisher acknowledges and agrees that unauthorized Use of the Products or disclosure of Confidential Information may cause the Company irreparable harm for which its remedies at law may be inadequate. Publisher hereby agrees that the Company will be entitled, in addition to any other remedies available to it at law or in equity, to obtain immediate injunctive relief to prevent such unauthorized actions.
These Terms of Service constitute the entire agreement between the Company and Publisher with respect to the subject matter hereof and supersedes all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter.
The Company may modify the terms of these Terms of Service in its sole discretion and such modifications shall take effect and be binding on Publisher on the earliest date which they are posted to the Company’s publicly available website or delivered to Publisher via electronic or physical delivery. No one other than the Company has the right to modify these Terms of Service.
Publisher may not assign or transfer this agreement to any third party without the Company’s express written consent. Any assignment or transfer made in the absence of such consent shall be void and in the event of such unauthorized assignment or transfer the Company may immediately terminate these Terms of Service.
No term or provision of these Terms of Service shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the Company. Any consent by the Company to, or waiver of, a breach by Publisher whether expressed or implied, shall not constitute consent to, waiver of, or excuse for, any other breach or any subsequent breach, except as may be expressly provided by the Company.