Terms of Use

Effective date: August 18, 2024

Introduction

Welcome to Fish.Audio. Thank you for using the Fish.Audio platform and the products, services and features we make available to you as part of the platform (collectively, the “Services”).Please read on to learn the rules and restrictions that govern your use of the Services. If you do not understand the Agreement, or do not accept any part of it, then you may not use the Services.If you have any questions, comments, or concerns regarding these terms or the Services, please contact us at:


Email: [email protected]


Your Services Provider


The entity providing the Services is Hanabi AI Inc., a corporation operating under the laws of Delaware, located at 131 Continental Dr, Suite 305, Newark, DE 19713, United States (referred to as “Fish.Audio”, “we”, “us”, or “our”).


Applicable Terms


Your use of the Services is subject to these terms which may be updated from time to time (together, this “Agreement”). The Agreement includes the provisions in this document as well as those in the  Privacy Policy. Your use of or participation in certain Services may also be subject to additional policies, rules and/or conditions (“Additional Terms”), which are incorporated herein by reference, and you understand and agree that by using or participating in any such Services, you agree to also comply with these Additional Terms.

Who may use the Services

Age Requirements

You must be at least 13 years old to use the Services; however, children of all ages may use the Services if enabled by a parent or legal guardian.


You represent and warrant that you are an individual of legal age to form a binding contract (or if not, you’ve received your parent’s or guardian’s permission to use the Services and have gotten your parent or guardian to agree to this Agreement on your behalf).


Permission by Parent or Guardian


If you are under 18, you represent that you have your parent or guardian’s permission to use the Services. Please have them read this Agreement with you.


If you are a parent or legal guardian of a user under the age of 18, by allowing your child to use the Services, you are subject to the terms of this Agreement and responsible for your child’s activity on the Services.


Businesses


If you are using the Services on behalf of a company or organization, you represent that you have authority to act on behalf of that entity, and that such entity accepts this Agreement. You may not make your access credentials or account available to others outside your organization, and you are responsible for all activities that occur using your credentials.

Your Use of the Services

Content on the Services


The content on the Services includes videos, audio (for example music and other sounds), graphics, photos, text (such as comments and scripts), branding (including trade names, trademarks, Services marks, or logos), interactive features, software, typefaces, metrics, and other materials whether provided by you, Fish.Audio or a third party (collectively, “Content”).


Content is the responsibility of the person or entity that provides it to the Services. Fish.Audio is under no obligation to host or serve Content. If you see any Content you believe does not comply with this Agreement, including by violating the law, you can report it to us.


Fish.Audio Account


You may be required to sign up for an account, select a password and user name (“Fish.Audio Account”), and provide us with certain information or data, such as your contact information. You promise to provide us with accurate, complete, and updated registration information about yourself. You may not provide us with a name that you do not have the right to use, or another person’s name with the intent to impersonate that person. You may not transfer your Fish.Audio Account to anyone else without our prior written permission.


Additionally, you may be able to access certain parts or features of the Services by using your Fish.Audio Account credentials from other Services (each, a “Third Party Account”), such as those offered by Google. By using the Services through a Third Party Account, you permit us to access certain information from such account for use by the Services. You are ultimately in control of how much information is accessible to us and may exercise such control by adjusting your privacy settings on your Third Party Account.


You will only use the Services for your own internal, personal, non-commercial use, and not on behalf of or for the benefit of any third party, and only in a manner that complies with all laws that apply to you. Notwithstanding the foregoing, if you are a user of Paid Services, you are licensed to use the Services for commercial uses and otherwise to the fullest extent possible under applicable law, subject to all the terms and conditions of this Agreement as they are applicable to the Services. If your use of the Services is prohibited by applicable laws, then you aren’t authorized to use the Services. We can’t and won’t be responsible for your using the Services in a way that breaks the law.


You will not share your Fish.Audio Account with anyone, and you must protect the security of your Fish.Audio Account, account, password and any other access tools or credentials. You’re responsible for any activity associated with your Fish.Audio Account.


Your Information


Our Privacy Policy explains how we treat your personal data and protect your privacy when you use the Services. For the current Fish.Audio Privacy Policy, please click here  Privacy Policy.


Children’s Online Privacy Protection Act


The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under 13 years of age. We do not knowingly collect or solicit personally identifiable information from children under 16 years of age; if you are a child under 16 years of age, please do not attempt to register for or otherwise use the Services or send us any personal information. If we learn we have collected personal information from a child under 16 years of age, we will delete that information as quickly as possible. If you believe that a child under 16 years of age may have provided us personal information, please contact us at [email protected].


Cookies


We employ the use of cookies. By accessing Fish.Audio, you agreed to use cookies in agreement with our Privacy Policy.


Most interactive websites use cookies to let us retrieve the user’s details for each visit. Cookies are used by our website to enable the functionality of certain areas to make it easier for people visiting our website. Some of our affiliate/advertising partners may also use cookies.


Messaging


As part of the Services, you may receive communications through the Services, including messages that Fish.Audio sends you (for example, via email or SMS). When signing up for the Services, you will receive a welcome message and instructions on how to stop receiving messages. By signing up for the Services and providing us with your wireless number, you confirm that you want Fish.Audio to send you information that we think may be of interest to you, which may include Fish.Audio using automated dialing technology to text you at the wireless number you provided, and you agree to receive communications from Fish.Audio, and you represent and warrant that each person you register for the Services or for whom you provide a wireless phone number has consented to receive communications from Fish.Audio. You agree to indemnify and hold Fish.Audio harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to your breach of the foregoing.


Permissions and Restrictions


You may access and use the Services as made available to you, as long as you comply with this Agreement and applicable law.


You represent, warrant, and agree that you will not provide or contribute anything, including any Content or User Submission (as those terms are defined below), to the Services, or otherwise use or interact with the Services, in a manner that:


(a) infringes or violates the intellectual property rights or any other rights of anyone else (including Fish.Audio);

(b) violates any law or regulation, including, without limitation, any applicable export control laws, privacy laws or any other purpose not reasonably intended by Fish.Audio;

(c) is dangerous, harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, abusive, inflammatory, hateful, cruel or insensitive, or otherwise objectionable;

(d) jeopardizes the security of your Fish.Audio Account or anyone else’s (such as allowing someone else to log in to the Services as you);

(e) attempts, in any manner, to obtain the password, account, or other security information from any other user;

(f) violates the security of any computer network, or cracks any passwords or security encryption codes;

(g) runs Maillist, Listserv, any form of auto-responder or “spam” on the Services, or any processes that run or are activated while you are not logged into the Services, or that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure);

(h) “crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the Services or Content (through use of manual or automated means);

(i) decompiles, reverse engineers, reverse complies, translate, or otherwise attempts to discover or obtain the source code, underlying components of models, algorithms, underlying ideas, or information of or relating to the Services;

(j) use output from the Services to develop models that compete with Fish.Audio;

(k) buy, sell, or transfer API keys without our prior consent;

(l) send us any personal information of children under 13 or the applicable age of digital consent.

(m) collect or harvest any information that might identify a person (for example, usernames or faces);

(n)use the Services to distribute unsolicited promotional or commercial content or other unwanted or mass solicitations;

(o) cause or encourage any inaccurate measurements of genuine user engagement with the Services, including by paying people or providing them with incentives to increase a video’s views, likes, or dislikes, or to increase a channel’s subscribers, or otherwise manipulate metrics in any manner; or

(p) misuse any reporting, flagging, complaint, dispute, or appeals process, including by making groundless, vexatious, or frivolous submissions;

(q) use or distribute Content in a misleading way, including, without limitation, representing that the Content is entirely human generated. Further, if you distribute your Content to others, we encourage you to proactively disclose that such Content was created using artificial intelligence technologies so as not to mislead others of its origin.

A violation of any of the foregoing is grounds for termination of your right to use or access the Services. We may use IP addresses or other indicators to detect possible fraudulent or suspicious activity. Without limiting any other rights or remedies of Fish.Audio, if we detect activity we believe to be fraudulent or suspicious, we may cancel your earned credits, terminate your accounts, or restrict your IP addresses or other identifiers from registering new accounts.


We reserve the right to terminate your right to use or access the Services at any time, for any reason, in our sole discretion, and without notice.


Reservation


Using the Services does not give you ownership of or rights to any aspect of the Services, including user names or any other Content posted by others or Fish.Audio.


Develop, Improve and Update the Services


Fish.Audio is constantly changing and improving the Services. As part of this continual evolution, we may make modifications or changes (to all or part of the Services) such as adding or removing features and functionalities, offering new digital content or Services, or discontinuing old ones. We may also need to alter or discontinue the Services, or any part of it, in order to make performance or security improvements, make changes to comply with law, or prevent illegal activities on or abuse of our systems. These changes may affect all users, some users or even an individual user. When the Services require or include downloadable software, that software may update automatically on your device once a new version or feature is available, subject to your device settings. We’ll try to give you notice when we make a material change to the Services that would adversely affect you, but this isn’t always practical.


Change of Terms


We are constantly trying to improve our Services, so this Agreement may need to change along with our Services. We reserve the right to change this Agreement at any time, but if we do, we will place a notice on our site located at https://fish.audio/terms/, send you an email, and/or notify you by some other means.


If you don’t agree with the new terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. If you use the Services in any way after a change to this Agreement is effective, that means you agree to all of the changes.


Except for changes by us as described here, no other amendment or modification of this Agreement will be effective unless in writing and signed by both you and us.


Your Rights in the Services


The materials displayed or performed or available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, images, illustrations, User Submissions (as defined below) and so forth are protected by copyright and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you won’t use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell, commercialize or otherwise exploit for any purpose any Content not owned by you, (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else’s (including Fish.Audio’s) rights.


Subject to this Agreement, we grant each user of the Services a worldwide, non-exclusive, non-sublicensable and non-transferable license to use (i.e., to download and display locally) Content solely for purposes of using the Services. Use, reproduction, modification, distribution, or storage of any Content for any purpose other than using the Services is expressly prohibited without prior written permission from us. You understand that Fish.Audio owns the Services. You won’t modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section), create derivative works based on, or otherwise exploit any of the Services. The Services may allow you to copy or download certain Content, but please remember that even where these functionalities exist, all the restrictions in this section still apply.

Your Content and Conduct

User Submissions


Anything you post, upload, share, store, or otherwise provide through the Services is your “User Submission”. Some User Submissions may be viewable by other users. You are solely responsible for all User Submissions you contribute to the Services. You represent that all User Submissions submitted by you are accurate, complete, up-to-date, and in compliance with this Agreement, all applicable laws, rules, and regulations. We may use automated systems that analyze User Submissions to help detect infringement and abuse, such as spam, malware, and illegal content.


You warrant and represent that you will not post, upload, share, store, or otherwise provide through the Services any User Submissions that: (i) infringe any third party's copyrights or other rights (e.g., trademark, privacy rights, etc.) ; (ii) contain sexually explicit content or pornography; (iii) contain hateful, defamatory, or discriminatory content or incite hatred against any individual or group; (iv) exploit minors; (v) depict unlawful acts or extreme violence; (vi) depict animal cruelty or extreme violence towards animals; (vii) promote fraudulent schemes, multi-level marketing (MLM) schemes, get rich quick schemes, online gaming and gambling, cash gifting, work from home businesses, or any other dubious money-making ventures; or (viii) that violate any law.


Rights You Grant


In order to display your User Submissions on the Services, and to allow other users to enjoy them (where applicable), you grant us certain rights in those User Submissions (see below for more information). Please note that all of the following licenses are subject to our  Privacy Policy  to the extent they relate to User Submissions that are also your personally-identifiable information.


For all User Submissions, you hereby grant Fish.Audio a license to translate, modify (for technical purposes, for example, making sure your content is viewable on a mobile device as well as a computer) and reproduce and otherwise act with respect to such User Submissions, in each case to enable us to operate the Services, as described in more detail below. This is a license only – your ownership in User Submissions is not affected.


If you store a User Submission in your own personal Fish.Audio Account, in a manner that is not viewable by any other user except you (a “Personal User Submission”), you grant Fish.Audio the license above, as well as a license to display, perform, and distribute your Personal User Submission for the sole purpose of making that Personal User Submission accessible to you and providing the Services necessary to do so.


If you share a User Submission in a manner that only certain specified users can view (for example, a private message to one or more other users) (a “Limited Audience User Submission”), then you grant Fish.Audio the licenses above, as well as a license to display, perform, and distribute your Limited Audience User Submission for the sole purpose of making that Limited Audience User Submission accessible to such other specified users, and providing the Services necessary to do so. Also, you grant such other specified users a license to access that Limited Audience User Submission, and to use and exercise all rights in it, as permitted by the functionality of the Services.


If you share a User Submission publicly on the Services and/or in a manner that more than just you or certain specified users can view, or if you provide us (in a direct email or otherwise) with any feedback, suggestions, improvements, enhancements, and/or feature requests relating to the Services (each of the foregoing, a “Public User Submission”), then you grant Fish.Audio the licenses above, as well as a license to display, perform, and distribute your Public User Submission for the purpose of making that Public User Submission accessible to all Fish.Audio’s users and providing the Services necessary to do so, as well as all other rights necessary to use and exercise all rights in that Public User Submission in connection with the Services and/or otherwise in connection with Fish.Audio’s business, including the right to use, display, perform, and distribute your Public User Submission for Fish.Audio’s marketing and promotional purposes. Also, you grant all other users of the Services a license to access that Public User Submission, and to use and exercise all rights in it, as permitted by the functionality of the Services.


You agree that the licenses you grant are royalty-free, perpetual, sublicensable, irrevocable, and worldwide, provided that when you delete your Fish.Audio Account, we will stop displaying your User Submissions (other than Public User Submissions, which may remain fully available) to other users (if applicable), but you understand and agree that it may not be possible to completely delete that content from Fish.Audio’s records, and that your User Submissions may remain viewable elsewhere to the extent that they were copied or stored by other users.


Certain features of the Services allow you to share information with others, including through your social networks or other Third Party Accounts. When Content is authorized for sharing, we will clearly identify the Content you are authorized to redistribute and the ways you may redistribute it, usually by providing a “share” button on or near the Content. If you share information from the Services with others through your Third Party Accounts, such as your social networks, you authorize Fish.Audio to share that information with the applicable Third Party Account provider. Please review the policies of any Third Party Account providers you share information with or through for additional information about how they may use your information. If you redistribute Content, you must be able to edit or delete any Content you redistribute, and you must edit or delete it promptly upon our request.


Finally, you understand and agree that Fish.Audio, in performing the required technical steps to provide the Services to our users (including you), may need to make changes to your User Submissions to conform and adapt those User Submissions to the technical requirements of connection networks, devices, services, or media, and the foregoing licenses include the rights to do so.


Removing Your Content


You may remove your Content from the Services at any time. You also have the option to make a copy of your Content before removing it. You must remove your Content if you no longer have the rights required by these terms.


Removal of Content by Fish.Audio


We reserve the right to remove any Content from the Services at any time, for any reason (including, but not limited to, if someone alleges you contributed that Content in violation of this Agreement), in our sole discretion, and without notice.


Copyright Protection


In accordance with the DMCA, we’ve adopted the following policy toward copyright infringement. We reserve the right to (1) block access to or remove material that we believe in good faith to be copyrighted material that has been illegally copied and distributed by any of our advertisers, affiliates, content providers, members, or users and (2) remove and discontinue Services to repeat offenders.


（1）Procedure for Reporting Copyright Infringements.  If you believe that material or content residing on or accessible through the Services infringes your copyright (or the copyright of someone whom you are authorized to act on behalf of), please send a notice of copyright infringement containing the following information to Fish.Audio’s Designated Agent to Receive Notification of Claimed Infringement (our “Designated Agent,” whose contact details are listed below):

(a) A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed;
(b) Identification of works or materials being infringed; (c) Identification of the material that is claimed to be infringing including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that Fish.Audio is capable of finding and verifying its existence;
(d) Contact information about the notifier including address, telephone number and, if available, email address;
(e) A statement that the notifier has a good faith belief that the material identified in (1)(c) is not authorized by the copyright owner, its agent, or the law; and
(f) A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner.

(2) Once Proper Bona Fide Infringement Notification is Received by the Designated Agent. Upon receipt of a proper notice of copyright infringement, we reserve the right to:

(a) remove or disable access to the infringing material;
(b) notify the content provider who is accused of infringement that we have removed or disabled access to the applicable material; and
(c) terminate such content provider's access to the Services if he or she is a repeat offender.

(3) Procedure to Supply a Counter-Notice to the Designated Agent. If the content provider believes that the material that was removed (or to which access was disabled) is not infringing, or the content provider believes that it has the right to post and use such material from the copyright owner, the copyright owner's agent, or, pursuant to the law, the content provider may send us a counter-notice containing the following information to the Designated Agent:

(a) A physical or electronic signature of the content provider;
(b) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or disabled;
(c) A statement that the content provider has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material; and
(d) Content provider's name, address, telephone number, and, if available, email address, and a statement that such person or entity consents to the jurisdiction of the Federal Court for the judicial district in which the content provider’s address is located, or, if the content provider's address is located outside the United States, for any judicial district in which Fish.Audio is located, and that such person or entity will accept service of process from the person who provided notification of the alleged infringement.

If a counter-notice is received by the Designated Agent, Fish.Audio may, in its discretion, send a copy of the counter-notice to the original complaining party informing that person that Fish.Audio may replace the removed material or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider accused of committing infringement, the removed material may be replaced or access to it restored in 10 to 14 business days or more after receipt of the counter-notice, at Fish.Audio’s discretion.


Please contact Fish.Audio’s Designated Agent at the following address:


131 Continental Dr Suite 305


Newark, DE 19713 United States


Responsibility for What You See and Do on the Services


Any information or Content publicly posted or privately transmitted through the Services is the sole responsibility of the person from whom such Content originated, and you access all such information and Content at your own risk, and we aren’t liable for any errors or omissions in that information or Content or for any damages or loss you might suffer in connection with it. We cannot control and have no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Services. We can’t guarantee the identity of any users with whom you interact in using the Services and are not responsible for which users gain access to the Services.


You are responsible for all Content you contribute, in any manner, to the Services, and you represent and warrant you have all rights necessary to do so, in the manner in which you contribute it.


The Services may contain links or connections to third-party websites or services that are not owned or controlled by Fish.Audio. When you access third-party websites or use third-party services, you accept that there are risks in doing so, and that Fish.Audio is not responsible for such risks.


Fish.Audio has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third-party websites or by any third party that you interact with through the Services. In addition, Fish.Audio will not and cannot monitor, verify, censor, or edit the content of any third-party site or service. We encourage you to be aware when you leave the Services and to read the terms and conditions and privacy policy of each third-party website or service that you visit or utilize. By using the Services, you release and hold us harmless from any and all liability arising from your use of any third-party website or service.


Your interactions with organizations and/or individuals found on or through the Services, including payment and delivery of goods or services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that Fish.Audio shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings.


If there is a dispute between participants on this site or Services, or between users and any third party, you agree that Fish.Audio is under no obligation to become involved. In the event that you have a dispute with one or more other users, you release Fish.Audio, its directors, officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected, or unsuspected, disclosed, or undisclosed, arising out of or in any way related to such disputes and/or our Services. You shall and hereby do waive California Civil Code Section 1542 or any similar law of any jurisdiction, which says in substance: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”


Usage Date and Content


Usage Data and Content may be used to develop, train, or enhance artificial intelligence or machine learning models that are part of Fish.Audio’s products and services, including third-party components of the Services, and you authorize Fish.Audio to process your Usage Data and Content for such purposes. Due to the nature of artificial intelligence and machine learning, information generated by these features may be incorrect or inaccurate. Services features that include artificial intelligence or machine learning models are not human and are not a substitute for human oversight. “Usage Data” means data and information about the provision, use, and performance of the Services and related offerings based on you or your use of the Services.

Account Suspension & Termination

Terminations by You


You may stop using the Services at any time. Follow these instructions to delete the Services from your Fish.Audio Account, which involves closing your Fish.Audio Account and removing your data. You also have the option to download a copy of your data first.


Terminations and Suspensions by Fish.Audio


Fish.Audio is free to terminate (or suspend access to) your use of the Services or your Fish.Audio Account for any reason in our discretion, including your breach of this Agreement. Fish.Audio has the sole right to decide whether you are in violation of any of the restrictions set forth in this Agreement.


Effect of Account Suspension or Termination


Account termination may result in destruction of any Content associated with your account, so keep that in mind before you decide to terminate your account. We will try to provide advance notice to you prior to our terminating your account so that you are able to retrieve any important User Submissions you may have stored in your account (to the extent allowed by law and this Agreement), but we may not do so if we determine it would be impractical, illegal, not in the interest of someone’s safety or security, or otherwise harmful to the rights or property of Fish.Audio.


If you have deleted your Fish.Audio Account by mistake, contact us immediately at [EAMIL] – we will try to help, but unfortunately, we can’t promise that we can recover or restore anything.


Provisions that, by their nature, should survive termination of this Agreement shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us, including without limitation the arbitration agreement.

About Software in the Services

Downloadable Software


When the Services require or include downloadable software, unless that software is governed by additional terms which provide a license, Fish.Audio gives you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the software provided to you by Fish.Audio as part of the Services. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Services as provided by Fish.Audio, in the manner permitted by this Agreement. You are not allowed to copy, modify, distribute, sell, or lease any part of the software, or to reverse-engineer or attempt to extract the source code of that software, unless laws prohibit these restrictions, or you have Fish.Audio’s written permission.


Open Source


Some software used in our Services may be offered under an open source license that we make available to you. There may be provisions in an open source license that expressly override some of these terms, so please be sure to read those licenses.


Mobile Applications


You acknowledge and agree that the availability of our mobile application is dependent on the third party stores from which you download the application, e.g., the App Store from Apple or the Android app market from Google (each an “App Store”). Each App Store may have its own terms and conditions to which you must agree before downloading mobile applications from such store, including the specific terms relating to Apple App Store set forth below. You agree to comply with, and your license to use our application is conditioned upon your compliance with, such App Store terms and conditions. To the extent such other terms and conditions from such App Store are less restrictive than, or otherwise conflict with, the terms and conditions of this Agreement, the more restrictive or conflicting terms and conditions in this Agreement apply.


Fish.Audio App available via the Apple App Store


This Agreement applies to your use of all the Services, including our iOS applications (the “Application”) available via the Apple, Inc. (“Apple”) App Store, but the following additional terms also apply to the Application:


(a) Both you and Fish.Audio acknowledge that this Agreement is concluded between you and Fish.Audio only, and not with Apple, and that Apple is not responsible for the Application or the Content;
(b) The Application is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Services for your private, personal, non-commercial use, subject to all the terms and conditions of this Agreement as they are applicable to the Services. Notwithstanding the foregoing, if you are a user of Paid Services, you are licensed to use the Application in connection with the Services for commercial uses and otherwise to the fullest extent possible under applicable law, subject to all the terms and conditions of this Agreement as they are applicable to the Services;
(c) You will only use the Application in connection with an Apple device that you own or control;
(d) You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support Services with respect to the Application;
(e) In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the Application;
(f) You acknowledge and agree that Fish.Audio, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the Application;
(g) You acknowledge and agree that, in the event of any third-party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, Fish.Audio, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
(h) You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
(i) Both you and Fish.Audio acknowledge and agree that, in your use of the Application, you will comply with any applicable third-party terms of agreement which may affect or be affected by such use; and
(j) Both you and Fish.Audio acknowledge and agree that Apple and Apple’s subsidiaries are third-party beneficiaries of this Agreement, and that upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as the third-party beneficiary hereof.

Fees and Payments

The Services may be free, or we may charge a fee for using the Services. If you are using a free version of the Services, we will notify you before any Services you are then using begin carrying a fee, and if you wish to continue using such Services, you must pay all applicable fees for such Services. Note that if you elect to receive text messages through the Services, data and message rates may apply. Any and all such charges, fees or costs are your sole responsibility. You should consult with your wireless carrier to determine what rates, charges, fees, or costs may apply to your use of the Services.


Paid Services


Certain of our Services may be subject to payments now or in the future (the “Paid Services”). Please see our Paid Services page for a description of the current Paid Services. Please note that any payment terms presented to you in the process of using or signing up for Paid Services are deemed part of this Agreement.


Billing


If you wish to purchase Paid Services (the “Purchase”), you may be asked to supply certain information relevant to your Purchase, including, without limitation, your credit card number, the expiration date of your credit card, and your billing address.


You represent and warrant that: (i) you have the legal right to use any credit card(s) or other payment method(s) in connection with any Purchase; and (ii) the information you supply to us is true, correct, and complete.


We may use third-party payment processors (the “Payment Processors”) to bill you through a payment account linked to your account on the Services (your “Billing Account”) for use of the Paid Services. The processing of payments will be subject to the terms, conditions, and privacy policies of the Payment Processors in addition to this Agreement. By submitting your payment information, you understand that we may share that information with the Payment Processors subject to our Privacy Policy. We are not responsible for any error by, or other acts or omissions of, the Payment Processors.


By choosing to use Paid Services, you agree to pay us, through the Payment Processors, all charges at the prices then in effect for any use of such Paid Services in accordance with the applicable payment terms, and you authorize us, through the Payment Processors, to charge your chosen payment provider (your “Payment Method”). You agree to make payment using that selected Payment Method. We reserve the right to correct any errors or mistakes that the Payment Processors makes even if it has already requested or received payment. We reserve the right to reject your Purchase due to Services unavailability, or if fraud or an unauthorized or illegal transaction is suspected.


Payment Method


The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method. If we, through the Payment Processors, do not receive payment from you, you agree to pay all amounts due on your Billing Account upon demand.


Recurring Billing


Some of the Paid Services may consist of an initial period, for which there is a one-time charge, followed by recurring period charges as agreed to by you (“Subscription(s)”). By choosing a recurring payment plan, you acknowledge that such Services have an initial and recurring payment feature, and you accept responsibility for all recurring charges prior to cancellation. WE MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY US) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WE REASONABLY COULD ACT. TO TERMINATE YOUR AUTHORIZATION OR CHANGE YOUR PAYMENT METHOD, GO TO ACCOUNT SETTINGS.


We, in our sole discretion and at any time, may modify subscription fees for the Subscription(s). We will inform you of any change to your subscription fees in advance to give you an opportunity to terminate your Subscription before such change becomes effective. Any subscription fee change will become effective immediately upon publishing, or, if you have an active Subscription, at the end of your then current billing cycle. Your continued use of a Subscription after a subscription fee change comes into effect constitutes your agreement to pay the revised subscription fee amount.


Current Information Required


YOU MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR YOUR BILLING ACCOUNT. YOU MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP YOUR BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND YOU MUST PROMPTLY NOTIFY US OR OUR PAYMENT PROCESSOR IF YOUR PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR USER NAME OR PASSWORD. CHANGES TO SUCH INFORMATION CAN BE MADE AT ACCOUNT SETTINGS. IF YOU FAIL TO PROVIDE ANY OF THE FOREGOING INFORMATION, YOU AGREE THAT WE MAY CONTINUE CHARGING YOU FOR ANY USE OF PAID SERVICES UNDER YOUR BILLING ACCOUNT UNLESS YOU HAVE TERMINATED YOUR PAID SERVICES AS SET FORTH ABOVE.


Change in Amount Authorized


If the amount to be charged to your Billing Account varies from the amount you preauthorized (other than due to the imposition or change in the amount of state sales taxes), you have the right to receive, and we shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. Any agreement you have with your payment provider will govern your use of your Payment Method. You agree that we may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle.


Auto-Renewal for Paid Services


Unless you opt out of auto-renewal, which can be done through your account settings, any Paid Services you have signed up for will be automatically extended for successive renewal periods of the same duration as the Subscription term originally selected, at the then-current non-promotional rate. To change or resign your Paid Services at any time, go to account settings. If you terminate a Paid Services, you may use your Subscription until the end of your then-current term, and your Subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. IF YOU DO NOT WANT TO CONTINUE TO BE CHARGED ON A RECURRING MONTHLY BASIS, YOU MUST CANCEL THE APPLICABLE PAID SERVICES THROUGH YOUR ACCOUNT SETTINGS OR TERMINATE YOUR FISH.AUDIO ACCOUNT BEFORE THE END OF THE RECURRING TERM. PAID SERVICES CANNOT BE TERMINATED BEFORE THE END OF THE PERIOD FOR WHICH YOU HAVE ALREADY PAID, AND EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, FISH.AUDIO WILL NOT REFUND ANY FEES THAT YOU HAVE ALREADY PAID.


Reaffirmation of Authorization


Your non-termination or continued use of a Paid Services reaffirms that we are authorized to charge your Payment Method for that Paid Services. We may submit those charges for payment, and you will be responsible for such charges. This does not waive our right to seek payment directly from you. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you initially selected to use the Paid Services.


Free Trials and Other Promotions


Any free trial or other promotion that provides access to a Paid Services must be used within the specified time of the trial. You must stop using a Paid Services before the end of the trial period in order to avoid being charged for that Paid Services. If you cancel prior to the end of the trial period and are inadvertently charged for a Paid Services, please contact us [email protected]. At any time before the start of your Free Trial and without notice, we reserve the right to (i) modify the terms applicable to any Free Trial offer, or (ii) cancel such Free Trial offer.

Export Controls

You agree that you will not export or re-export, directly or indirectly, the Services and/or other information or materials provided by the Fish.Audio hereunder, to any country for which the United States or any other relevant jurisdiction requires any export license or other governmental approval at the time of export without first obtaining such license or approval. In particular, but without limitation, the Services may not be exported or re-exported (a) into any U.S. embargoed countries or any country that has been designated by the U.S. Government as a “terrorist supporting” country, or (b) to anyone listed on any U.S. Government list of prohibited or restricted parties, including the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Services, you represent and warrant that you are not located in any such country or on any such list. You are responsible for and hereby agree to comply at your sole expense with all applicable export laws and regulations.

Other Legal Terms

Warranty Disclaimer


Fish.Audio and its licensors, suppliers, partners, parent, subsidiaries or affiliated entities, and each of their respective officers, directors, members, employees, consultants, contract employees, representatives and agents, and each of their respective successors and assigns (Fish.Audio and all such parties together, the “Fish.Audio Parties”) make no representations or warranties concerning the Services, including without limitation regarding any Content contained in or accessed through the Services, and the Fish.Audio Parties will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services or any claims, actions, suits procedures, costs, expenses, damages or liabilities arising out of use of, or in any way related to your participation in, the Services. The Fish.Audio Parties make no representations or warranties regarding suggestions or recommendations of Services or products offered or purchased through or in connection with the Services. THE SERVICES AND CONTENT ARE PROVIDED BY Fish.Audio (AND ITS LICENSORS AND SUPPLIERS) ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.


Limitation of Liability


TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL ANY OF THE Fish.Audio PARTIES BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, (B) ANY SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, (C) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) ONE-HUNDRED ($100) DOLLARS OR (II) THE AMOUNTS PAID AND/OR PAYABLE BY YOU TO Fish.Audio IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM OR (D) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL OR CERTAIN OTHER DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.


Indemnity


You agree to indemnify and hold the Fish.Audio Parties harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any claims relating to (a) your use of the Services (including any actions taken by a third party using your account), and (b) your violation of this Agreement. In the event of such a claim, suit, or action (“Claim”), we will attempt to provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).


Third-Party Links


The Services may contain links to third-party websites and online Services that are not owned or controlled by Fish.Audio. Fish.Audio has no control over, and assumes no responsibility for, such websites and online Services. Be aware when you leave the Services; we suggest you read the terms and privacy policy of each third-party website and online Services that you visit.


Assignment


You may not assign, delegate, or transfer this Agreement or your rights or obligations hereunder, or your Fish.Audio Account, in any way (by operation of law or otherwise) without Fish.Audio’s prior written consent. We may transfer, assign, or delegate this Agreement and our rights and obligations without consent.


Severance


If it turns out that a particular term of this Agreement is not enforceable for any reason, this will not affect any other terms.


No Waiver


If you fail to comply with this Agreement and we do not take immediate action, this does not mean that we are giving up any rights that we may have (such as the right to take action in the future).


Interpretation


In this Agreement, “include” or “including” means “including but not limited to,” and any examples we give are for illustrative purposes.


Governing Law


This Agreement is governed by and will be construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of California, without regard to the conflicts of laws provisions thereof.


Limitation on Legal Action


YOU AND Fish.Audio AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.


Arbitration Agreement


Please read the following ARBITRATION AGREEMENT carefully because it requires you to arbitrate certain disputes and claims with Fish.Audio and limits the manner in which you can seek relief from Fish.Audio. Both you and Fish.Audio acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of this Agreement, Fish.Audio’s officers, directors, employees and independent contractors (“Personnel”) are third-party beneficiaries of this Agreement, and that upon your acceptance of this Agreement, Personnel will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as the third-party beneficiary hereof.

(a) Arbitration Rules; Applicability of Arbitration Agreement. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement arising out of or relating to the subject matter of this Agreement directly through good-faith negotiations, which shall be a precondition to either party initiating arbitration. If such negotiations do not resolve the dispute, it shall be finally settled by binding arbitration in San Francisco County, California. The arbitration will proceed in the English language, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “Rules”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules.Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.

(b) Costs of Arbitration. The Rules will govern payment of all arbitration fees. Fish.Audio will pay all arbitration fees for claims less than seventy-five thousand ($75,000) dollars. Fish.Audio will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.

(c) Small Claims Court; Infringement. Either you or Fish.Audio may assert claims, if they qualify, in small claims court in San Francisco County, California or any United States county where you live or work. Furthermore, notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction, to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights.

(d) Waiver of Jury Trial. YOU AND Fish.Audio WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and Fish.Audio are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and Fish.Audio over whether to vacate or enforce an arbitration award, YOU AND Fish.Audio WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.

(e) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor Fish.Audio is entitled to arbitration; instead, all claims and disputes will be resolved in a court as set forth in (g) below.

(f) Opt-out. You have the right to opt out of the provisions of this Section by sending written notice of your decision to opt out to the following address: 303 Twin Dolphin Dr, Redwood City, CA 94065 postmarked within thirty (30) days of first accepting this Agreement. You must include (i) your name and residence address, (ii) the email address and/or telephone number associated with your account, and (iii) a clear statement that you want to opt out of this Arbitration Agreement.

(g) Exclusive Venue. If you send the opt-out notice in (f), and/or in any circumstances where the foregoing arbitration agreement permits either you or Fish.Audio to litigate any dispute arising out of or relating to the subject matter of this Agreement in court, then the foregoing arbitration agreement will not apply to either party, and both you and Fish.Audio agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in, respectively, San Francisco County, California, or the federal district in which that county falls.

(h) Severability. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration Agreement section will be null and void. This arbitration agreement will survive the termination of your relationship with Fish.Audio.


Miscellaneous


You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services, provided that the Fish.Audio may, in its sole discretion, do any of the foregoing on your behalf or for itself as it sees fit. You and Fish.Audio agree that this Agreement IS the complete and exclusive statement of the mutual understanding between you and Fish.Audio, and that this Agreement supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of Fish.Audio, and you do not have any authority of any kind to bind Fish.Audio in any respect whatsoever.


Except as expressly set forth in the sections above regarding the Apple Application and the Arbitration Agreement, you and Fish.Audio agree there are no third-party beneficiaries intended under this Agreement.