TERMS OF USE

These Terms of Use were last modified as of February 16, 2021.

PLEASE READ THIS DOCUMENT CAREFULLY

This document sets out the terms of use for the Audio First, Inc. d/b/a Hello Audio (“Hello Audio”, “Company”, “we”, “us”, “our”) platform. It governs our Content Owners and Creatives (“Users”), and our end users (“Listeners”). When we refer to “You”, we will be clear whether we mean Listeners or Users.

Because this document represents our agreement with you about your use of our platform, please take the time to read this document before agreeing to the terms.  

If you do not agree to any of these terms, you should not use the Hello Audio platform.
Our Terms of Use (“Terms” or “Agreement”) also includes our Terms of Service and Privacy Policy, and any other documents referred to by those agreements, and they, as a whole, govern any and all of the access to the Hello Audio platform, whether you are a User or Listener.

Hello Audio’s Platform, can be found at https://www.helloaudio.fm, and also includes, without limitation, all of the subdomains, mobile applications, any other media, location, application, owned, managed, operated, etc. by Audio First, Inc. When referring to all of the places Hello Audio’s Platform can be found in this Agreement, we will be collectively referring to them as the “Platform”.

1.  Introduction

Thanks for choosing Hello Audio! We provide a platform designed to allow Users to create private and public audio feeds, and upload feeds for Listeners to download, access, and stream on the podcast player of their choice (“Content”). By using any of our tools and services, including all associated features and functionalities, websites, applications and user interfaces, as well as all Content and software applications associated with our Platform (“Services”), you are entering into a binding contract with Hello Audio.

By using our Platform in any manner, you are expressly agreeing to, and give your consent to be governed by these Terms. If you do not agree with these Terms or you do not wish to be bound by these Terms, you must not use or access Hello Audio’s Platform in any manner.

Hello Audio is not a content provider. Users and Listeners are not employees of Hello Audio. Hello Audio is not responsible for interactions between Users and Listeners with the exception of providing the technological means through which Users may broadcast and otherwise make their Content available. Hello Audio is not liable for any disputes, claims, losses, injuries, or damage of any kind that may arise out of the User/Listener relationship, including but not limited to, any Listeners’ reliance upon any information provided by a User or Content at any time.

As stated in our Privacy Policy, Hello Audio provides Users with information about the Listeners who have listened, downloaded and streamed their content, including without limitation their name, and any other information pertaining to the content accessed, downloaded, streamed or listened by Listeners. This information is only available to the User upon the access, download, or stream of a Listener of the User’s Content. Hello Audio does not provide, sell, rent, release, disclose, etc. Listener data to Users for monetary or other valuable consideration.

Listeners assume full responsibility for the disclosure and use of any other personal information the Listener chooses to disclose to any User on the Platform.

2.  Age of Access

You must be at least 18 years old to use the Platform. We recognize the special obligation to protect personally identifiable information obtained from children age 13 and under. IF YOU ARE YOUNGER THAN 18 YEARS OLD, THE COMPANY REQUESTS THAT YOU NOT USE THE PLATFORM OR SUBMIT ANY PERSONALLY IDENTIFIABLE INFORMATION TO THE SITE OR TO HELLO AUDIO.

By using our Platform, you are telling us by your actions that you are 18 years old or older (you are ‘representing’ and ‘warranting’ that you are 18 years old or older). If you are under the age of 18, you may not use our Platform in any manner nor may you register for an account.

3.  Account Registration

          i.  Listeners
Account registration is only available to Users. Listeners are only provided a private link from either Hello Audio or a User to access the Content on the podcast player of their choice (i.e., Apple podcasts, Overcast, Google Podcasts, etc.), however, it should be noted that not all podcast players support private feeds at this time. Private feed Listeners do not have access to our Services and Content beyond the private link they are provided with to listen to a User’s private feed.

          ii.  Users
If you choose to register for a Company account, you must complete the account registration process by providing us with current, complete, and accurate information as prompted by the applicable registration form. You must input an email address owned by only you and choose a password. You agree to keep your username and password confidential and to only register only once using one email address. You agree you will not (i) register on behalf of another person; (ii) register under the name of another person or under a fictional name or alias; (iii) choose credentials that constitute or suggest an impersonation of any other person (real or fictitious) or entity or that you are a representative of an entity when you are not, or that is offensive; (iv) choose credentials for the purposes of deceiving or misleading our users and/or the Company as to your true identity; or (v) choose credentials that incorporate a solicitation.

You understand that you are wholly and completely responsible for maintaining the confidentiality of your username, password and account. Furthermore, you are wholly and completely responsible for any and all activities that occur under your account.

If we have reasonable grounds to suspect that you have provided false information, shared your username, password or account with anyone else, or forwarded any non-public Content to any other person, we have the right to suspend or terminate your account and refuse any and all current or future Services to you, in whole or part, without refund. Any personally identifiable information you provide as part of the registration process is governed by the terms of the Company’s website Privacy Policy.

You should notify us immediately of any known or suspected unauthorized use of your email and password or any other breach of security. We will not be liable for any loss that you may incur as a result of someone else using your email, password, or account, either with or without your knowledge. You could be held liable for losses incurred by us or another party due to someone else using your email, password, or account. You may not use anyone else’s account at any time, without the permission of the account holder. 

We may notify you of relevant information regarding the Platform and Services in any of the following ways: (a) by emailing you at the contact information you provide in your account registration, (b) by posting a notice in dashboard areas of the Platform, and (c) by posting the notice elsewhere on the Platform in an area suitable to the notice. It is your responsibility to periodically review the Platform for such notices.

4.  User Service Pricing Plans & Trials

     A.  Annual and Monthly Plans

You can find a description of our annual and monthly subscription plan options (“Plans”) on our website here. On our website, you’ll find descriptions of the Plans available to you when you register for an account, along with details on when your payment of your selected Plan will be due. There are Plans that allow for you to start using our Services for free, which means that we will not require payment before you access our Services during your trial period, which is discussed in further detail in Paragraph B of this section.

We may also offer special promotional plans or discounts for our Services. We reserve the right to modify, terminate or otherwise amend our offered Plans and promotional or discounted offerings at any time in accordance with these Terms.

Users will not be subject to any price changes and can continue to use our Platform and Services at the price rate we advertised the day the User registered for an account, as long as the User remains on the same plan without interruption in their subscription.

If you have purchased or received a code, gift card, pre-paid offer or other offer provided or sold by or on behalf of Hello Audio for access to a Plan (“Code”), separate terms and conditions presented to you along with the Code may also apply to your access to the Service and you agree to comply with any such terms and conditions.

     B.  Trial Period

From time to time, we may offer Users a trial. We may offer these Trials free of charge upon registering or with a fee upon registering for an account (in either instance, a “Trial”). All Trial offer information, including but not limited to how long the trial period is for and the costs, if any, of the Trial will be listed at the time the Trial is offered.
 
For all Trials, we require you to provide your payment details prior to beginning the Trial. You understand that we may, in our sole right and authority, determine that you are not eligible for a Trial and we therefore may withdraw or modify a Trial at any time without prior notice and without liability, to the extent permitted under applicable law.

By providing such payment details, you agree that we may automatically begin charging you for the Trial, if there is a fee associated with the Trial, or for the selected Plan on the first day following the end of the Trial on a recurring monthly or annual basis (depending on the Plan you initially choose). If you do not want to be charged for the Plan on the first day following the end of the Trial, you must cancel the applicable Plan before the end of the Trial.  You can find more information regarding the cancellation of your Plan by viewing your account billing information on your dashboard.

5.  User Payments, Cancellations, and Refunds

     A.  Payments

At the time of registering for an account with us, you agree to the fees and payment schedule listed on our website. You will be asked by us to supply certain personal information relevant to your purchase of a Plan, including, without limitation, your credit card number, billing address, expiration date, and card security code.

You represent and warrant that you have the legal right to use any credit or debit card(s) you place on file with us to purchase and access our Platform and Services. You give us permission to automatically charge your credit or debit card for all fees and charges due and payable to us, without any additional authorization, for which you will have access to your payment history in your account dashboard.  You also agree that we are authorized to share any payment information and instructions required to complete the payment transactions with our third-party payment service providers (e.g., credit card transaction processing, merchant settlement, and related services). You acknowledge that any such information will be treated by us in accordance with our Privacy Policy

If payment is not received when due, the Company reserves the right to deny or terminate your access to the Services, Content and Platform immediately.  

     B.  Cancellations

You may cancel your Plan at any time, subject to Section 4 and Section 5 of these Terms. In the event you cancel your Plan, the cancellation will become effective at the end of the then-current billing cycle. If you have an annual Plan, you will continue to have access to our Services for the remaining months of your Plan. 

In the event of cancellation, we highly suggest you download and remove your content from our Platform before cancelling your Plan. We create audio files from Users video files that they place on our website to be uploaded for Listeners. After the video files have been created into audio files, we destroy the video files, therefore, it is important that Users keep copies of their content because they cannot rely on us to keep it. 

Upon cancellation, you will continue to own your content and we will not have the right to distribute, provide, or make available that content to prospective Listeners who have not received a private link to access, stream or download your content. However, if you do cancel your Plan and Listeners have received a private link to access, stream or download your content, we will have the right to distribute, provide, or make available that content to those Listeners while your account remains active for the remaining month(s) of your Plan. 

Furthermore, upon cancellation, we cannot guarantee that your content will still be available, and we have no obligation to keep original content that you may upload to our Platform. Therefore, Hello Audio shall not be held responsible for the loss of any User content upon cancellation of a Plan nor shall Hello Audio be liable to the User or Listener(s) for their inability to access content arising from any cancelation, including any claims of interference or contractual relations.

     C.  Refunds

          i.  Listeners 
As further discussed in Section 3 of this Agreement, our Platform does not make any Content or User Content available for purchase by Listeners. Additionally, our Platform does not make account registration available to Listeners, unless the Listener would like to become a User to upload Content to our Platform. Therefore, we do not accept payment from Listeners and Listeners may not request a refund from Hello Audio. Any Listener refund request shall be directed to the User from whom the Listener purchased the course or content.

You understand and agree that Hello Audio shall not be held responsible or liable for behavior, features, content of any User, or any transaction that any Listener may enter into with any User.

          ii.  Users 
In order for monthly and annual Users to receive a refund for the fees associated with the Plan they’ve chosen; they must cancel their Plan: (i) within 30 days after the ending of a Trial for their selected Plan and (ii) Users must email us their request for a refund at support@helloaudio.fm. Any refund requests after the 30 days mentioned above will be rejected, and Annual users will continue to have access to our Platform and Services for the remaining months of their Plan. For Monthly Users who request a refund after the 30 days mentioned above, the request will be rejected, and the Monthly User will continue to have access to our Platform and Services until their monthly payment is due.

In all other cases, we have a no refund policy. Unless otherwise provided by law, you acknowledge that we do not offer refunds for any portion of your payment for any of our Services or Content and no refunds will be provided to you. By using our Platform and/or purchasing a Plan on our Platform, you understand and agree that, except for the limited refund period described above, all purchases are final, and no refunds will be provided.

6.  Ownership and License

     A. Our Ownership of Our Content

Content on the Platform, including all information, software, technology, data, logos, marks, designs, text, graphics, pictures, audio and video files, intellectual property, other data or copyrightable materials or content, and their selection and arrangement, is referred to herein as "Hello Audio Content”, and is and remains the sole property of Hello Audio unless otherwise noted, and it is protected by copyright, trademark, and other intellectual property laws. Hello Audio Content, including our trademarks, may not be modified by you in any way.   YOU MAY NOT MODIFY, COPY, REPRODUCE, REPUBLISH, UPLOAD, POST, TRANSMIT, OR DISTRIBUTE, IN ANY MANNER, THE MATERIAL ON THE PLATFORM, INCLUDING TEXT, GRAPHICS, CODE AND/OR SOFTWARE.

     B. Our License to Listeners and Users

If you view, download or access any Hello Audio Content on our platform, you will be considered our licensee and for the avoidance of doubt, you are granted a limited, non-sublicensable, non-exclusive, non-transferable license to access our platform.

You agree to not engage in the use, copyright, or distribution, sale, copying or disclosing of any of the Service, Hello Audio Content, or any portion thereof, to friends, family, or any other third party, or for commercial purposes or in any way that earns you or any third-party money, other than as expressly permitted.

     C.  User Ownership and Content

Content that you upload to the Platform is and remains your content (“User Content”). You retain all of your ownership rights in your User Content. Hello Audio does not claim any intellectual property rights over the materials you upload to the Platform by virtue of your use of our Services. By uploading your User Content to the Platform, you agree that:

     1.  We may review your content for any reason, including compliance with our Code of Conduct in Section 7 of this Agreement and prohibited content requirements, but we have no obligation to review anything that you upload.

     2.  You are uploading your content to the Platform at your discretion and we do not in any way certify or provide approval or permission prior to you uploading your content. 

     3.  You agree that by uploading your content to our Platform, you are allowing us to store your content.

     4.  You agree that User Content you upload and submit to the Platform will not contain third party copyrighted material, or material that is subject to other third-party proprietary rights, unless you have permission from the rightful owner of the material, or you are otherwise legally entitled to post the material and to grant us all of the license rights granted herein.

     5.  You affirm, represent, and warrant that you own or have the necessary licenses, rights, consents, and permissions to publish User Content you submit.

     6.  You understand and agree that when you upload your User Content to our Platform, you authorize us, if need be, to assist with any issue you may encounter with your account.

     7.  You agree to provide Hello Audio with all necessary licenses, including a worldwide, non-exclusive, royalty-free, sublicensable and transferable license to use, reproduce, distribute, prepare derivative works of, and perform  (e.g., to display or transmit) your content in furtherance of our Services, including without limitation for promoting and redistributing part or all of your content in any media formats and through any media channels, including for advertising or other commercial use (In other words, because you own your content, you have to give us permission to display it, market it, use it, and to use it for internal operational purposes, like storing it on our servers).

     8.  You also hereby grant each of your Listeners a non-exclusive license to access your User Content through the Service, and to use, listen, download, and access such User Content as permitted through the functionality of the Service and under these Terms. 

     9.  You understand that the content you create may be private which means Listeners will only be able to access your private Content if you provide them, or direct us to send, a direct link to your content on our Platform. 

     10.  You understand and agree that we shall not be held responsible for third-party podcast platforms’ approval of your feeds.

     11.  You understand and agree that we may retain, but not display, distribute, or perform, server copies of your User Content that have been removed or deleted.

     12.  You understand and agree that if your content contains explicit language or content, you will mark that content as explicit on your feed.

     13.  You are responsible for and own, or have the rights to use, all of your Content.

We are not responsible for User Content nor do we endorse any opinion contained in any User Content. We reserve the right to disable access to our Platform or remove you and any of your User Content from our Platform if you violate any of these Terms.

     D.  User and Listener License to Company; Use Testimonials and Marketing

From time to time, we provide opportunities for Users to submit feedback, testimonials and ideas for improvements related to our Service. By posting or submitting any material such as comments, posts, photos, designs, graphic, images or videos or other contributions that you are representing to us that you are the owner of all such materials, and you are at least 18 years old. You acknowledge and agree that the feedback, testimonials or ideas of improvement that Company receives from you is not confidential and you authorize the Company to use it without restriction and without payment to you.

You also grant us, and anyone authorized by us, the right to use your likeness and identify you as the author or individual depicted in any comments, posts, photos, images, videos or other contributions created by you or the Company, or by name, email address, or screen name, for any purposes, including commercial purposes and advertising. You acknowledge that we have the right but not the obligation to use any contributions from you and that we may elect to cease that use of any such contributions for our Platform or in our Content at any time for any reason.

7.  Code of Conduct for all Users

     A.  No Illegal Activity: Do not use the Platform for any illegal activity. You are not allowed to use our Platform to engage in any kind of conduct that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the U.S. or other countries) or conduct that infringes upon the use or rights of another user.  You are not to register a name, engage in, or upload User Content that is offensive, abusive, defamatory, pornographic, threatening, or obscene.

     B.  You shall not reverse-engineer, decompile, disassemble, modify or creative derivative works of the Hello Audio Content, Service or Platform or any part thereof except to the extent permitted by applicable law.

     C.  You are not permitted to sell, rent, sublicense or lease any part of our Services, Hello Audio Content or Content.

     D.  You may not remove or alter any copyright, trademark, or other intellectual property notices contained on User Content, nor our Hello Audio Content, Services, or Platform.

     E.  No Fraud: Yes, this is probably covered in the No Illegal Activity section above, but we want to make this very clear. Fraud will not be tolerated in any capacity. No making any use of our Services, Platform or Hello Audio Content that is not expressly permitted under this agreement or applicable law or which otherwise infringes the intellectual property rights in our Service, Content or Platform.

     F.  No Bad Code: Do not use the Platform to transmit, distribute, send, etc. viruses, worms, malware, Trojan horses or any other code that may be deemed dangerous, harmful, or destructive in any manner. You will not use your account to breach security of another account or attempt to gain unauthorized access to another network or server. You shall not interfere with anyone else’s use and enjoyment of our Services and Platform. Users who violate systems or network security may incur criminal or civil liability.

     G.  No Spamming: You may not use our Platform and Services to engage in any activities that will result in sending spam, junk or bulk email, chain letters or any other form of unauthorized solicitation, or any form of lottery or gambling to anyone on the Platform, including other Users.

     H.  No Exploitation: You will not use the Platform to try to gather personal information on any other Users.

     I.  Intellectual Property: You will not upload any copyrighted, trademarked, or proprietary materials on the Platform without the express permission of the owner. You will not post any content that infringes on any patent, trademark, trade secret, copyright, right of publicity, or other intellectual property or proprietary right of any party.

     J.  Sharing of Content: You will not share Hello Audio Content from the Platform with anyone who is not properly licensed to access the content.

     K.  No Data Mining or Bots: You may not use any data mining, robots, or similar data gathering or extraction methods.  You may not engage in practices of “screen scraping,” “database scraping” or any other practice or activity the purpose of which is to obtain lists of Users, Listeners, portions of a database, or other lists or information from the Service, in any manner and any quantities not authorized by Hello Audio in writing.

     L.  You will not partake in any behavior that victimizes, harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability, nor will you communicate or display hate speech; and

     M.  No Use Other Than Intended: You may not use the Platform, or any content contained on the Platform for any purposes other than intended.

If you violate this Code of Conduct, we reserve the right to remove you and any of your Content from the Platform. Whether conduct violates our Code of Conduct will be determined in Hello Audio’s sole discretion.

8.  Code of Conduct for Listeners


     A.  You will accept all of the terms and conditions in this Agreement when you access, download or listen to Content on our Platform.

     B.  You shall not copy, redistribute, reproduce, record, transfer, perform, display to the public, broadcast or make available to the public any part of the Users Content nor any Hello Audio Services or Content.

     C.  You shall not reverse-engineer, decompile, disassemble, modify or creative derivative works of the Hello Audio Content, Service or Platform or any part thereof except to the extent permitted by applicable law.

     D.  You are not permitted to sell, rent, sublicense or lease any part of our Services, Hello Audio Content or Content

     E.  You may not remove or alter any copyright, trademark, or other intellectual property notices contained on User Content, nor our Hello Audio Content, Services, or Platform.

     F.  You may not provide your personal link with any other person, nor can you use any other person’s personal link to listen, stream, access and download Content on our Platform.

     G.  You shall not interfere with anyone else’s use and enjoyment of our Services and Platform.

If you violate this Code of Conduct, we reserve the right to remove you and terminate your access to our Platform immediately and permanently. Whether conduct violates our Code of Conduct will be determined in Hello Audio’s sole discretion.

9. Hello Audio’s General Rights In Operating Its Platform

We reserve the following rights over the entire Platform:

     A.  We may modify, terminate, or refuse to provide Services at any time for any reason, without notice.

     B.  We may remove anyone from the Platform at any time for any reason, solely in our discretion. This right is not modified by any other section of this Agreement.

     C.  We may, but we have no obligation to, monitor any content that appears on the Platform.

     D.  If a User is having difficulties uploading a feed or needs customer support, the User grants us permission and authorization to enter into their account to fix any and all issues.

     E.  We reserve the right to modify, suspend, or alter our refund policy, at our sole discretion.

     F.  If you cancel your account, we may keep a copy of your content after termination. You grant us a non-exclusive, perpetual, irrevocable license to maintain such archival copy for compliance with any relevant laws and regulations and for our internal business purposes, subject to applicable law.

     G.  We reserve the right to terminate your access and remove you and your content without warning if you violate any of the provisions of this Agreement.

     H.  Hello Audio has, in its sole discretion, an absolute right to modify, change, alter, suspend, or terminate any provision of this Agreement without warning at any time.  By accessing the Platform at any time after such modifications, you are agreeing to such modifications.

10. Third Parties


     A.  Third Party Links

The Service may contain links to third-party advertisers, websites, or Service (“Third-Party”). You acknowledge and agree that Company is not responsible or liable for: (1) the availability or accuracy of such advertisements, websites or Service, or (ii) the content, products, or resources on or available from such advertisers, websites or Service. Links to such advertisers, websites or Service do not imply any endorsement by Company of those websites or Service and Company is not responsible or liable for the behavior, features, or content of any Third-Party application, website, device, or service or for any transaction you may enter into with any such Third Party. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or Service.

     B.  Third Party Content

Through the use of our Service, Listeners will have the ability to access and/or use content provided by Third Parties. Company cannot guarantee that such Third-Party content will be free of material Listeners may find objectionable or otherwise. Company disclaims any responsibility or liability related to Listener access or use of any Third-Party content.

11. DMCA

     A.  General Policy:
Under the Digital Millennium Copyright Act (17 U.S.C. § 512) ("DMCA"), Hello Audio has the following policy:

If Hello Audio has a good faith belief that any content (including without limitation User or Listener) appearing on its Platform violates any copyrights or has been illegally copyrighted, Hello Audio reserves the right to remove, block, or otherwise “take down” the content. Hello Audio also reserves the right to remove from the Platform any Users, Listeners, Third-Parties or other parties, who are repeat offenders of the Hello Audio DMCA policy.

     B.  Reporting of Copyright Infringement Under the Digital Millennium Copyright Act (DMCA): 


          1.  Notice


If you believe that content appearing on the Platform violates your intellectual property, you should send a notice to Hello Audio (either physical mail or email is ok) at the following address:

Audio First, Inc.
Attention: Designated Agent/Legal Department
501 W Broadway, Ste A303
San Diego, CA 92101
support@helloaudio.fm

          2.  Contents of Notice


If you send Hello Audio a notice regarding any claimed infringements, your notice must contain the following information:

               a) A physical or electronic signature from the owner or a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed

               b) Identification of the copyrighted work claimed to have been infringed

               c) Identification of the material/works/content that is claimed to be infringing that you want to see removed. This identification should include a location (URL) and other details sufficient to allow Hello Audio to find and review this material on the Platform

              d) Your contact information, including your address, telephone number, and email address, so that we may be able to contact you.

               e) A statement by you that you have a good faith belief that the use of the material/works/content are not authorized by the copyright owner, its agent, or the law

               f) A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the copyright owner

          3.  Counter Notification


If any content (including without limitation User, Listeners or Third-Party) is removed due to the receipt of a DMCA notice, you may send Hello Audio what is known as a Counter Notice if you believe that your content was wrongly removed. Your Counter Notice must contain:

               a) A physical or electronic signature

               b) Identification of what was removed and the location where the material appeared before it was removed

               c) A statement under penalty of perjury that you have a good faith belief that the material was removed as a result of mistake or misidentification

               d) Your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district of California and that you will accept service of process from the person who provided notification

Please note that a copy of any notices received will be sent to the party who posted the content you report as infringing.

          4. Repeat Infringements:
Should Hello Audio receive multiple DMCA complaints regarding any Users, Listeners, or Third-Party, Hello Audio may simply remove that User, Listener or Third-Party from the Platform without further warning. 

12.  Trademark Violations

     A.  Trademark Infringement


The DMCA only covers copyright infringement of creative works. For claims of trademark infringement, Hello Audio requests that any notices sent to Hello Audio contain:

          1. Information describing your trademark or service mark

          2. The registration number, if applicable

          3. Basis for your trademark claim

          4. Jurisdiction in which you claim trademark rights, and

          5. Class (category) of goods or services and accompanying description for which you assert trademark rights

Please note that a copy of any notices received will be sent to the party who posted the content you report as infringing.

13. Account Ownership Disputes

In the unlikely event that there is a dispute over the ownership of an account, Hello Audio has the right to request additional information from you to determine ownership and settle the dispute. The information that we may request to assist in resolving ownership disputes includes, but is not limited to, the following:

A.  a copy of Your government-issued photo ID;
B.  Your business documents, including a Charter, Certificate of Incorporation, LLC Agreement, business license, or other documentation showing ownership of your entity;
C.  Your billing information and details;
D.  Certified copies of your tax returns or tax documents; and
E.  Other documentation as we deem necessary to settle the dispute

Should a dispute arise, Hello Audio reserves the right to determine the account ownership in its sole judgment, and the ability to transfer the account to the rightful owner, unless otherwise prohibited by law.

14. Affiliate Program

We use an Affiliate Program to promote our Services, Content and Platform. Only Users may become a Hello Audio affiliate (“Affiliate”). Users who are interested in becoming an Affiliate will have the opportunity to do so on their account dashboard. Affiliates must sign up for our Affiliate Program on our site. Affiliates are able to track their stats and share our referral link from their own private dashboard.

Affiliates can earn affiliate commissions (“Commissions”) by any of the following activities:

1. Posting links, given by Hello Audio, on their own or Third-Party websites or social media 
2. Promoting giveaways and contests on your social media and other platforms
3. Referring potential Users to the Platform through your unique referral link and/or promotional code, that is provided by Hello Audio.

During your enrollment in the Affiliate Program, we grant to you a non-exclusive, non-transferable, royalty-free license to use our referral hyperlinks between your and our website, and to use our trade names, logos, trademarks and service marks (“Our Marks") on your site and marketing efforts solely as is reasonably necessary to establish and promote such hyperlinks and to otherwise perform your obligations under this Agreement; provided, however, that any other promotional materials or usages containing any of Our Marks will be subject to Our prior written approval. 

We will pay Commissions to Affiliates in the amount of 30% of the total revenue We receive from potential Users who successfully register for a Plan on our Platform, during the life of the cookie placed on the designated URL through a hypertext link (“Qualifying Purchase”).  Commissions will not be payable on sales otherwise made from Our site or related sites, even if the customer previously made a Qualifying Purchase.  Commissions are subject to forfeiture or clawback if the potential User who signs up disputes the credit card charge or otherwise violates the payment terms, or if the Affiliate is found to be in violation of our terms. 

Commissions will be payable within 31 days after the end of the month in which payments are received (i.e. Commissions from this month’s sales will be paid next month by the 31st).  If during any month your Commissions do not exceed $50, then you will not receive payments or reports until following the next period during which your aggregate Commissions equal or exceed $50 or until the termination of this agreement, whichever occurs earlier.

We pay Affiliates by PayPal each month.  Affiliates must provide us with an e-mail to electronically send payment to during their enrollment in the affiliate program. If your e-mail address changes, it is your responsibility to notify us to ensure proper payments.  We will not resend payments returned due to incorrect payment e-mail addresses.

Reports of sales for which Commissions are payable with each payment will be available on Your First Promoter dashboard.  

Affiliates have 30 days from the time at which a Commission payment was or should have been made to report any discrepancies. After 30 days, Affiliate has waived any right to dispute any payment.

We cannot and do not guarantee any financial results or business outcome from participating in the Affiliate Program.

You may opt out of the affiliate program at any time.

Affiliates are responsible for all income, sales, and other taxes associated with the fees they earn. Affiliates will receive the appropriate tax forms, such as a 1099 or 1099k, from PayPal. Hello Audio reserves the right to withhold any payment until it has received all tax identification information it requires to satisfy its obligations.

Hello Audio reserves the right to withhold or cancel payments to Affiliates if it deems, in its sole judgement and absolute discretion, that the Affiliate engaged in behavior that violated any part of this Agreement.

15. Errors and Corrections

Hello Audio does not guarantee that the Platform or any services offered through the Platform will be error-free or otherwise reliable, nor does Hello Audio guarantee that defects will be corrected or that any offerings through the Platform will always be accessible. Hello Audio may make improvements and/or changes to the Platform and their features and functionality at any time and will use commercially reasonable efforts to avoid disrupting peak hours, though some downtime may occur. Errors in Content are the responsibility of the User who owns the User Content.

We reserve the right to amend the Platform, and any service or material we provide on the Platform, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Platform is unavailable at any time or for any period. From time to time, we may restrict access to some or all of the Platform to Users and Listeners.

16. Disclaimers

You acknowledge and agree that Hello Audio is not liable for a number of things, including your breach of this Agreement and losses that may result from your use of the Platform. We also require that you understand and agree that the Platform is offered As Is and may not always be 100% perfect or reliable and that Hello Audio doesn’t warrant or guarantee that it will always be free of errors or defects. Any claims for damages against Hello Audio will be limited to a portion of the fees you have paid us.

YOU UNDERSTAND AND AGREE THAT THE HELLO AUDIO SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT EXPRESS OR IMPLIED WARRANTY OR CONDITION OF ANY KIND. HELLO AUDIO AND ALL OWNERS OF THE CONTENT MAKE NO REPRESENTATIONS AND DISCLAIM ANY WARRANTIES OR CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NEITHER HELLO AUDIO NOR ANY OWNER OF CONTENT WARRANTS THAT THE HELO AUDIO SERVICE IS FREE OF MALWARE OR OTHER HARMFUL COMPONENTS. IN ADDITION, HELLO AUDIO MAKES NO REPRESENTATION NOR DOES IT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY THIRD PARTY APPLICATIONS (OR THE CONTENT THEREOF), USER CONTENT, DEVICES OR ANY OTHER PRODUCT OR SERVICE ADVERTISED, PROMOTED OR OFFERED BY A THIRD PARTY ON OR THROUGH THE HELLO AUDIO SERVICE OR ANY HYPERLINKED WEBSITE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING AND HELLO AUDIO IS NOT RESPONSIBLE OR LIABLE FOR ANY TRANSACTION BETWEEN YOU AND USERS OR THIRD PARTY PROVIDERS OF THE FOREGOING. NO ADVICE OR INFORMATION WHETHER ORAL OR IN WRITING OBTAINED BY YOU FROM HELLO AUDIO SHALL CREATE ANY WARRANTY ON BEHALF OF HELLO AUDIO. WHILE USING THE HELLO AUDIO SERVICE AND PLATFORM, YOU MAY HAVE ACCESS TO EXPLICIT CONTENT FILTERING FEATURES, BUT USE OF THESE FEATURES MAY STILL RESULT IN SOME EXPLICIT CONTENT BEING SERVED AND YOU SHOULD NOT RELY ON SUCH FEATURES TO FILTER ALL EXPLICIT CONTENT. THIS SECTION APPLIES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

THIS SECTION DOES NOT AFFECT YOUR STATUTORY RIGHTS AS A CONSUMER

17. Limitations of Liability

YOU AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY PROBLEMS OR DISSATISFACTION WITH THE HELLO AUDIO SERVICE IS LIMITED TO THE PORTION OF THE FEES YOU HAVE PAID US. YOU AGREE THAT HELLO AUDIO HAS NO OBLIGATION OR LIABILITY ARISING FROM OR RELATED TO THIRD PARTY APPLICATIONS OR THE CONTENT THEREOF MADE AVAILABLE THROUGH OR IN CONNECTION WITH THE HELLO AUDIO SERVICE, AND WHILE YOUR RELATIONSHIP WITH SUCH THIRD PARTY APPLICATIONS MAY BE GOVERNED BY SEPARATE AGREEMENTS WITH SUCH THIRD PARTIES, YOUR SOLE AND EXCLUSIVE REMEDY, AS WITH RESPECT TO HELLO AUDIO, FOR ANY PROBLEMS OR DISSATISFACTION WITH THIRD PARTY APPLICATIONS OR THE CONTENT THEREOF, IS LIMITED TO THE PORTION OF FEES THAT YOU HAVE PAID TO US.

IN NO EVENT WILL HELLO AUDIO, ITS OFFICERS, SHAREHOLDERS, EMPLOYEES, AGENTS, DIRECTORS, SUBSIDIARIES, AFFILIATES, SUCCESSORS, ASSIGNS, SUPPLIERS, OR LICENSORS BE LIABLE FOR (1) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES; (2) ANY LOSS OF USE, DATA, BUSINESS, OR PROFITS (WHETHER DIRECT OR INDIRECT), IN ALL CASES ARISING OUT OF THE USE OF OR INABILITY TO USE THE HELLO AUDIO SERVICE, DEVICES THIRD PARTY APPLICATIONS, OR THIRD PARTY APPLICATION CONTENT, REGARDLESS OF LEGAL THEORY, WITHOUT REGARD TO WHETHER HELLO AUDIO HAS BEEN WARNED OF THE POSSIBILITY OF THOSE DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE; OR (3) AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE HELLO AUDIO SERVICE, THIRD PARTY APPLICATIONS, OR THIRD PARTY APPLICATION CONTENT MORE THAN THE AMOUNTS PAID BY YOU TO HELLO AUDIO DURING THE PRIOR TWELVE MONTHS IN QUESTION.

Nothing in the Agreements removes or limits Hello Audio’s liability for fraud, fraudulent misrepresentation, death or personal injury caused by its negligence, and, if required by applicable law, gross negligence.

YOU AGREE THAT ANY CLAIM AGAINST HELLO AUDIO MUST BE COMMENCED BY FILING AN INDIVIDUAL ACTION UNDER SECTION (19) WITHIN ONE (1) YEAR AFTER THE DATE THE PARTY ASSERTING THE CLAIM FIRST KNOWS OR REASONABLY SHOULD KNOW OF THE ACT, OMISSION, OR DEFAULT GIVING RISE TO THE CLAIM; AND THERE SHALL BE NO RIGHT TO ANY REMEDY FOR ANY CLAIM NOT ASSERTED WITHIN THAT TIME PERIOD.

THIS SECTION APPLIES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

18. Indemnification

To the extent permitted by applicable law, you agree to defend, indemnify and hold harmless Company, its affiliated companies, and each of their respective officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Service; (ii) your violation of any term of this Agreement; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that your User Content caused damage to a user or third party. Company may assume the exclusive defense and control of any matter for which users have agreed to indemnify Company and you agree to assist and cooperate with Company in the defense or settlement of any such matters. This defense and indemnification obligation will survive the termination of this Agreement and your use of the Service.

19. Governing Law and Jurisdiction; Disputes 

This Agreement shall be governed in accordance with the laws of the State of California without regard to its conflicts of laws principles. Any action arising out of or relating to this Agreement shall be filed only in the state or federal courts located in San Diego County in the State of California. You consent and submit to the exclusive personal jurisdiction of such courts for the purpose of litigating any such action and waive any defense of lack of personal jurisdiction or forum non conveniens.

You and Hello Audio agree to waive the right to trial by jury. You further agree that any proceedings to resolve any disputes shall be done solely on an individual basis and that you will not seek to have any dispute heard as a class action, a representative action, a collective action, a private attorney-general action, or in any proceeding in which you act or propose to act in a representative capacity.

You also agree that no proceeding will be joined, consolidated, or combined with another proceeding without the prior written consent of Hello Audio and all parties to any such proceeding.

The prevailing party in any dispute between the parties arising out of or related to this Agreement, whether resolved by negotiation, mediation, or litigation, shall be entitled to recover its attorneys’ fees and costs from the other party.

20. California Civil Code Section 1789.3

California website users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California, 95814, or by telephone at (916) 445-1254 or (800) 952-5210.

Complaints or requests for further information can be sent to the address listed in the Contact Us section of this Agreement.

21. Privacy

Your use of the Platform is subject to our Privacy Policy.

22. Force Majeure

Company shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of Company, including, without limitation, any failure to perform due to unforeseen circumstances or causes beyond Company’s control, such as acts of God, war, terrorism, riots, embargoes, acts of governmental or regulatory or civil or military authorities, fire, floods, accidents, strikes, or shortages.

23. Entire Agreement; Severability of Provisions; No Waiver

     A.  These Terms of Use incorporate by reference any notices contained on the Platform, including within the Privacy Policy, and constitute the entire agreement with respect to access to and use of anything offered by Hello Audio, including the Platform, Services, and any Content.

     B.  If any provision of this Agreement is deemed unlawful, void, or unenforceable by a court of law exercising proper jurisdiction, that provision shall be deemed severed from the remaining provisions and shall not affect their validity and enforceability.

     C.  No waiver of any provision hereof shall be valid unless in writing signed by the parties. Any failure to enforce any right or remedy hereunder shall not operate as a waiver of the right to enforce such right or remedy in the future or of any other right or remedy.

24. Changes to the Terms of Use

Hello Audio may review and update this Agreement at any time in our sole discretion and it is your responsibility to stay informed of those changes. All changes are effective immediately when posted and apply to all uses of the Platform thereafter. Your continued use of the Platform following the posting of revised Terms of Use means that you accept and agree to be bound by the changes. Please check this webpage periodically for updates.

25. Titles/Headings

The headings and titles of sections to this Agreement have been inserted for the convenience of reference for the parties and are for informational purposes only and shall not be deemed to be a part of the language of this Agreement. Neither you nor Hello Audio shall rely on, or interpret substantively, the headings when construing the meaning of each section or the Agreement as a whole.

26. Contact Us

If you have questions or concerns regarding these Terms of Use, the Platform, Services, or Content, you may contact Us via the “Contact” information on our website, or by physical or electronic mail at the address below.

Note: The Hello Audio office is not open to the public:

Audio First, Inc.
501 W Broadway, Ste A303
San Diego, CA 92101
support@helloaudio.fm

Updated on February 16, 2021

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