MIVOKO CONTRIBUTOR AGREEMENT
The Text of This Agreement was Last Updated on: February 4, 2013
Please read this MIVOKO CONTRIBUTOR agreement (“Agreement”) carefully before CONTRIBUTING YOUR VOKO (AS DEFINED BELOW) to Mivoko Inc.’s (“Mivoko”) publicly accessible AND SEARCHABLE name pronunciation database (the “NameBAnkTM”) or accessing or using (the term “use” when used herein in respect of the Site will mean access or use, and using will have a corresponding meaning) any of the Services (as defined below). By clicking on “CREATE A MIVOKO ACCOUNT” underneath this Agreement, contributing a VOKO to the NAMEBANKTM OR using any of the Services, You (as defined below) are agreeing to be bound by and comply with this Agreement. If you do not accept and agree to be bound by this Agreement, or are not capable of agreeing to the terms of this Agreement, please do not contribute a VOKO to the NameBank TM or use the Services.
Mivoko has created NameBankTM to help people all over the world learn how to pronounce each other’s names. Mivoko makes NameBankTM accessible, without charge, through its generally available interfaces (e.g., Mivoko’s website, applications for tablets and mobile phones). Mivoko also works with paying third parties who get access to NameBankTM through Mivoko’s then available application programming interfaces (“APIs”). The APIs allow those paying third parties to build custom search functionality and other enhancements not available through the interface available through Mivoko’s standard interfaces. Paying third parties are provided with access to the same VOKO information that Mivoko makes available on NameBankTM through Mivoko’s website, but are provided with different ways of accessing that information.
You may sign up for your contributor account (the “Contributor Account”) free of charge by completing the online sign-up process on the Mivoko website and providing all information required for initial registration (the “Sign-up Process”). When you sign up, you are asked for (a) an email address and password and (b) the following information that collectively becomes your “VOKO” (i) your name and corresponding pronunciation (in the form of recorded voice audio file), (ii) optional pronunciation tips for your name, and (iii) optional “enhanced” profile information (e.g., city, country, gender, business organization).
Each Contributor Account provides you access to the following features: (a) the ability to create a VOKO which will be stored and shared in the NameBank until you ask us to remove it; (b) a personalized URL link to each VOKO which allows you to share your VOKO with others; and (c) a personalized VOKO HTML embed code for a Mivoko branded “button” (in substantially the following form: ) for each VOKO (a “mi button”) whose use by you is subject to the Mivoko Branding Guidelines; and (d) technical support (collectively, the “Services”).
Mivoko reserves the right to modify, add or remove any of the Services at any time, and from time to time, without notice.
(a) “Contributor Account” has the meaning ascribed to it in Background section of this Agreement.
(b)“Effective Date” means the date on which you complete the Sign-up Process and are issued a Contributor Account.
(c) “Services” means the services described in the Background section of this Agreement, provided, however, that Mivoko reserves the right to update its description of the Services without notice from time to time during the Term.
(d) “Sign-up Process” has the meaning ascribed to it in Background section of this Agreement.
(e) “Term” has the meaning ascribed to it in Section 9.
(f) “User Data” has the meaning ascribed to it in Section 4(b).
(g) “VOKO” has the meaning ascribed to it in Background section of this Agreement.
(h) “you” means the person utilizing the Services (Mivoko and you are each a “Party” and collectively, the “Parties”).
3. Provision of the Services
(b) Provisioning of the Services. Mivoko will host relevant Services on servers physically located in the United States of America, Canada or both, and may update the functionality and user interface of the Services from time to time in its sole discretion as part of its ongoing mission to improve the Services and customers’ use of the Services.
4. License Grants
(a) License Grants by Mivoko. Subject to the terms and conditions of this Agreement, Mivoko grants you: (i) a non-exclusive, non-transferable license during the Term to access the Services over the Internet and through the then available standard interface for the Services; and (ii) a non-exclusive, revocable, royalty-free license during the Term to use the mi button solely to provide access to the VOKO linked with your Contributor Account and in accordance with the Mivoko Trademark Guidelines available on Mivoko’s website here (the “Mivoko Trademark Guidelines” www.mivoko.com/content/copyright). The Mivoko Trademark Guidelines are hereby incorporated by reference and form a part of this Agreement.
(b) License Grants by You. As noted in Section 7, you own all the information you provide Mivoko, including any audio recordings and files that you load, transmit to or enter into the Service, user generated content, ideas, concepts, techniques or data, you submit to Mivoko in any manner (the “User Data”). You control that data and, as noted in Section 8, you can request Mivoko delete it at any time. However, by entering into this Agreement, you grant Mivoko a non-exclusive, irrevocable, worldwide, perpetual, unlimited, assignable, sublicenseable, fully paid up and royalty-free right to copy, prepare derivative works of, modify, improve, distribute, publish, remove, retain, add, process, analyze, use and commercialize, in any way now known or in the future discovered, the User Data, without any further consent, notice and/or compensation to you or to any third parties.
(b) Disclaimer and Consent. As between you and Mivoko, you are solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all User Data. You expressly consent to Mivoko’s storage of the User Data and to making the VOKO publicly accessible AND SEARCHABLE over the Internet AND AVAILABLE TO PAYING THIRD PARTIES THROUGH SPECIALLY BUILT INTERFACES WITH THE NAMEBANKTM. Mivoko is not responsible for any User Data which are delayed, lost, altered, intercepted or stored during the transmission of any data whatsoever across public networks not owned and/or operated by Mivoko, including, but not limited to, the Internet, third party websites, and your local network. You agree that Mivoko is not in any way responsible for any interference with use of or access to the Services or security breaches arising from or attributable to the Internet and you waive any and all claims against Mivoko in connection therewith.
(c) Denial of Use. Mivoko retains the right, at its sole discretion, to deny use of the Services to anyone, at any time and for any reason, including, for violation of this Agreement. You agree to cease and desist from any such use immediately upon request by Mivoko. Mivoko will not be responsible for any loss or damages incurred by you as a result of any termination or suspension of use of the Services.
6. User ID; Limitations; Your Responsibilities
(a) User ID. During the Sign-up Process, you set your user identification (the email address you provide to us) and password (“User ID”) that Mivoko uses to set up your Contributor Account. You may only access and edit your VOKO through Mivoko’s then-available interface using the particular User ID associated with your Contributor Account. You will be responsible for maintaining the confidentiality of the User ID issued to you. You are responsible for all activity occurring under your User ID and will promptly notify Mivoko of any actual or suspected unauthorized use of the Services. Mivoko reserves the right to replace any User ID if it determines it may have been used for an unauthorized purpose.
(b) Limitations. You will not and will not permit any other person to: (i) access or use the Services other than as authorized under this Agreement; (ii) modify, adapt, alter or translate any software underlying the Services, except as expressly allowed hereunder; (iii) sublicense, lease, rent, loan, distribute, or otherwise transfer the Service to any other person; or (iv) use or copy the any software underlying the Services except as expressly allowed hereunder.
(c) Your Responsibilities. You agree that you will not:
(i) use or permit anyone to use the Services to collect, transmit or process: (A) infringing, obscene, threatening, offensive, libellous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights; (B) any non-public or personally-identifiable data regarding an individual’s financial or economic identity, sexual orientation, religious beliefs, medical or physical identity;
(ii) use or permit anyone to use the Services to send, store, publish, post, upload or otherwise transmit any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another;
(iii) continue to use the Services in a manner that interferes with or disrupts the integrity or performance of the Services following a notice from Mivoko of such use;
(iv) attempt to gain unauthorized access to the Services or Mivoko’s related systems or networks;
(v) use or knowingly permit the use of any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Services;
(vi) access, monitor or copy any part of the Services using any data mining, robot, spider, scraper or other automated means or any manual process for any data gathering or extraction methods without Mivoko’s express written permission;
(vii) access the Services for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the Services; or
(viii) copy, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Services or any part thereof or otherwise attempt to discover any source code or modify the Services.
7. Reservation of Rights
(a) Rights Reserved by Mivoko. Mivoko expressly reserves all rights in the Services and all other materials provided or made accessible by Mivoko hereunder not specifically granted to you. All right, title and interest in and to the Services and all other materials provided or made accessible by Mivoko hereunder, any update, adaptation, translation, customization or derivative work thereof, and all intellectual property rights therein will remain with Mivoko (or third party suppliers and licensor, if applicable) or, if applicable, are hereby assigned to Mivoko by you. The Services and all other materials provided or made accessible by Mivoko hereunder are licensed and not “sold” to you.
(b) Rights Reserved by You. You expressly reserve all rights in any User Data, subject to the licenses that you grant Mivoko in accordance with the provisions of this Agreement, and provided that you do not acquire any intellectual property rights in the Services or any elements thereof.
8. User Data
(a) Responsibility. You have sole responsibility for the accuracy, appropriateness and completeness of all User Data. Mivoko will use the User Data it is provided in performing the Services and is not responsible for reviewing, validating or otherwise confirming the accuracy, appropriateness or completeness of User Data.
(b) Removal of User Data on Request by You. You may control the User Data stored by the Services (e.g. your VOKO) including, at any time, by deleting all or part of the User Data stored on the Services.
(c) Feedback. By submitting ideas, suggestions, documents, and/or proposals as a part of the User Data ("Feedback") to Mivoko you acknowledge and agree that: (i) your Feedback does not contain confidential or proprietary information; (ii) Mivoko is not under any obligation of confidentiality, express or implied, with respect to the Feedback; (iii) Mivoko shall be entitled to use or disclose (or choose not to use or disclose) such Feedback for any purpose, in any way, in any media worldwide; (iv) Mivoko may have something similar to the Feedback already under consideration or in development; (v) you irrevocably assign to Mivoko all rights to your Feedback; and (vi) you are not entitled to any compensation or reimbursement of any kind from Mivoko under any circumstances.
(d) Restrictions. You agree not to upload or transmit any User Data: (i) that you do not have the lawful right to copy, transmit, distribute, and display; (ii) for which you do not have the consent or permission from the owner of any personally identifiable information contained in the User Data; (iii) that infringes, misappropriates or otherwise violates any intellectual property or other proprietary rights or violates any privacy rights of any third party (including, without limitation, any copyright, trademark, patent, trade secret, or other intellectual property right, or moral right or right of publicity); (iv) that is false or misleading; (v) that is defamatory, obscene, or offensive; or (vi) that violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil or criminal liability.
(e) Disclosures. You acknowledge, consent and agree that Mivoko may access, preserve, and disclose your registration information and any other User Data if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary in Mivoko’s opinion to: (i) comply with legal process, including, but not limited to, civil and criminal subpoenas, court orders or other compulsory disclosures; (ii) enforce this Agreement; (iii) respond to claims of a violation of the rights of third parties; (iv) respond to customer service inquiries; or (v) protect the rights, property, or personal safety of Mivoko, its customers and users or the public.
(f) Indemnity. You agree to defend, indemnify and hold harmless Mivoko, its employees, officers, directors, agents and affiliates against any and all liability (including damages, recoveries, deficiencies, interest, penalties and reasonable legal fees) arising out of claims, causes of action, demands, recoveries, losses, damages, fines, penalties or other costs or expenses of any kind or nature including but not limited to reasonable legal and accounting fees, brought by third parties as a result of: (i) User Data, (ii) your breach of any one or more of your obligations, representations and warranties under this Agreement or the documents referenced herein; (iii) your violation of any law or the rights of a third party; or (iv) your use of the Services, including in combination with any third party software, application or service.
This Agreement will commence on the date the Sign-up Process is complete and will continue in effect thereafter until terminated (the “Term”).
10. User Support
Mivoko will provide the following standard customer support to you:
(a) Web Support. You will have access to Mivoko’s technical support web site and may use the web site to submit service requests. Mivoko may also elect to offer you the option of submitting service requests to Mivoko by email. Mivoko will use reasonable efforts to respond to such service requests. Mivoko will use commercially reasonable efforts to correct any reproducible failure of the Services to substantially conform to its expected operation, provided, however, that Mivoko will not be required to provide a correction for all such nonconformities.
(b) Service Upgrades and Scheduled Downtime. Mivoko will update the Services in its sole discretion. Mivoko may from time to time schedule downtime for maintenance and upgrades.
(c) Data Storage and Backup. The Services include online data storage and regular data backups of User Data stored on the Services. However, it is your responsibility to backup onto your own local system all User Data, including all data, files and recordings that you submit to Mivoko.
(a) On Notice. You may terminate this Agreement at any time by using the options available through Mivoko’s then current interface for managing your Contributor Account. Mivoko may terminate this Agreement at any time without notice, but will make commercially reasonable efforts to provide you some prior notice of termination using the contact information provided by you in connection with your Contributor Account.
(b) Survival. Upon termination or expiration of this Agreement for any reason: (a) all rights and obligations of both Parties, including all licenses granted hereunder shall immediately terminate; (b) Mivoko shall promptly remove your VOKO from the NameBankTM. The following Sections will survive expiration or termination of this Agreement for any reason: Section 7 (Reservation of Rights), 8(f) (Indemnity), Section 11(b) (Survival), Section 13 (Warranty Disclaimer and Limit on Liability), and Section 16 (General Provisions).
12. Communications Not Confidential
Mivoko does not guarantee the confidentiality of any User Data. Mivoko may retain a copy of User Data for the purpose of and to the extent necessary for it to comply with applicable and legal, regulatory, and/or reasonable internal back-up or archival policies and requirements.
13. Warranty Disclaimer and Limit on Liability
(a) Warranty Disclaimer. YOU EXPRESSLY AGREE THAT YOUR USE OF, OR INABILITY TO USE, THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED “AS IS”, “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND. MIVOKO DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS ABOUT THE QUALITY, ACCURACY, RELIABILITY, COMPLETENESS, CURRENCY, OR TIMELINESS OF THE SERVICES. THE SERVICES MAY INCLUDE ERRORS, OMISSIONS AND INACCURACIES, INCLUDING PRONOUNCIATION ERRORS. MIVOKO DOES NOT ASSUME ANY RESPONSIBILITY FOR ANY ERRORS, OMISSIONS OR INACCURACIES IN THE SERVICES. TO THE FULLEST EXTENT PERMITTED BY LAW, MIVOKO HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE. MIVOKO DOES NOT WARRANT THAT THE SERVICES WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE.
(b) Limit on Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, MIVOKO ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, OR LICENSORS DISCLAIM ALL LIABILITY, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE, GROSS NEGLIGENCE OR WILFUL MISCONDUCT), PRODUCT LIABILITY, STRICT LIABILITY, STATUTORY LIABILITY, BREACH OF A FUNDAMENTAL TERM, FUNDAMENTAL BREACH, OR ANY OTHER LEGAL THEORY, FOR ANY LOSS OR DAMAGES OF ANY KIND ARISING IN CONNECTION WITH OR UNDER THIS AGREEMENT INCLUDING FROM YOUR USE OF, OR INABILITY TO MAKE USE OF, THE SERVICES OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF, OR INABILITY TO MAKE USE OF, THE SERVICES (INCLUDING ANY (I) DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE LOSS OR DAMAGE, (II) FRAUD, (III) LOSS OF PROGRAMS OR DATA (INCLUDING ANY USER DATA), (IV) LOSS OF USE, (V) PERSONAL OR PROPERTY DAMAGE, (VI) FINES, FEES, PENALTIES, OR (VII) ANY OTHER LOSSES OR DAMAGES, WHETHER OR NOT MIVOKO IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, RESULTING FROM THE USE OF, OR THE INABILITY TO MAKE USE OF, THE SERVICES. TO THE EXTENT THAT THE FOREGOING LIMITATION DOES NOT APPLY, IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF MIVOKO IN CONNECTION WITH OR UNDER THIS AGREEMENT INCLUDING FROM YOUR USE OF, OR INABILITY TO MAKE USE OF, THE SERVICES OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF, OR INABILITY TO MAKE USE OF, THE SERVICES EXCEED 10 (TEN) CANADIAN DOLLARS or the equivalent in local currency. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THE MAXIMUM LIABILITY AMOUNT.
The limitation above reflects the allocation of risk between the parties. The limitations specified in this section will survive and apply even if any limited remedy specified in these terms is found to have failed of its essential purpose.
(a) Notices by You to Mivoko. Notices by you to Mivoko will be effective immediately upon being delivered by email, one (1) day after being sent by overnight courier, or two (2) days after being sent by first class mail postage prepaid to the official contact designated below and immediately after being received by Mivoko’s server. Notices by you to Mivoko must be in writing and sent to the respective email or postal address set out below. Mivoko may change its contact information by updating this Agreement on its website or by providing notice of such change to you.
Mivoko Contact Information:
Address: 25 The Esplanade, Toronto, Ontario M5W 1E5
(b) Notices by Mivoko to You. Notices by Mivoko to you will be effective immediately upon being delivered by email to the email address associated with your Contributor Account. You are solely responsible for ensuring at all times that the email address associated with your Contributor Account is accurate. Mivoko may also choose, in its sole discretion, to provide notice to you by displaying such notice on Mivoko’s website.
16. General Provisions
(a) Assignment. You may not assign this Agreement to any third party without Mivoko’s prior written consent. Any assignment in violation of this section shall be void. The terms of this Agreement shall enure to the benefit of and be binding upon the Parties, their successors and permitted assignees.
(b) Governing Law and Jurisdiction. This Agreement and any action related thereto shall be governed by and construed in accordance with the substantive laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to conflicts of law principles. Except as restricted by applicable law, you hereby consent to the exclusive jurisdiction and venue of courts in Toronto, Ontario, Canada in all disputes arising out of or relating to the use of the Site. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
(c) Construction. Except as otherwise provided herein, the Parties rights and remedies under this Agreement are cumulative. The term “including” means “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect.
(d) Force Majeure. Neither Party shall be liable for delays caused by events beyond its reasonable control, except non-payment of amounts due hereunder shall not be excused by this provision.
(e) Entire Agreement. This Agreement constitutes the entire agreement between Mivoko and you pertaining to the subject matter hereof and supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and Mivoko with respect to the subject matter hereof.
(f) Waiver. Mivoko's failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provisions or right. Waiver of any provision hereof in one instance shall not preclude enforcement thereof on future occasions.
(g) Severable. Any provision hereof found by a court or other tribunal of competent jurisdiction to be void, invalid, illegal or unenforceable shall be automatically conformed to the minimum requirements of law and all other provisions shall remain in full force and effect.
(h) Amendments. No amendment, supplement, modification, waiver or termination of this Agreement and, unless otherwise specified, no consent or approval by any Party, shall be binding unless executed in writing by the Party or Parties to be bound thereby. Any waiver by one Party of any default by the other Party will not affect or impair any rights of the first Party arising from any subsequent default by that other Party. Notwithstanding the foregoing, Mivoko reserves the right to change this Agreement at any time and from time to time without notice by posting revisions to this Agreement (including the description of the Services) on the Mivoko website. Continued use by you of the Services after you become aware of any such changes will constitute your consent to and agreement with such changes. You acknowledge that you are solely responsible for regularly reviewing the most current version of this Agreement which is available on Mivoko’s website.
(i) Further Assurances. Mivoko and you agree to do or cause to be done all acts or things necessary to implement and carry into effect this Agreement to its full extent.
(j) English Language. It is the express wish of the parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
(k) Consent to Electronic Contract. The Mivoko and you agree that this contract will be created in electronic form and may be executed by electronic means (including by clicking on “I Agree”). A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.