This Cherry Audio Store Terms and Conditions Agreement (this "Agreement") establishes the terms under which Cherry Audio will accept and license the Products you create using Voltage Module Designer™ and other Cherry Audio products to consumers and third-parties ("Consumers") through Cherry Audio's online stores and our additional distribution channels as defined below.
This Agreement is between Cherry Audio LLC ("Cherry Audio") and you. Throughout this Agreement, we may refer to ourselves as "Cherry Audio", "us", or "we". Likewise, we may refer to you as "you", "your", and "yourself". We refer to the user modules you create using Voltage Module Designer as "Product(s)". Any other product you submit to us under the terms of this Agreement are referred to as "Related Product(s)". Throughout this Agreement, Products and Related Products are individually referred to as a "Product" and in any combination as "Products"
1. SUBMITTING A PRODUCT TO US.
We encourage you to submit Products to us for (1) possible inclusion in our online store, which is currently located at https://store.cherryaudio.com/ and which may include other Internet locations authorized by us (our "Stores"); and for (2) possible inclusion with Cherry Audio and Other Audio Products authorized by us, or when sold via encryption keys ("Keys") when authorized by us (our "Additional Distribution Channels "). You understand that when you submit a Product to us for inclusion on our Stores and/or through our Additional Distribution Channels, we have no obligation to and do not guarantee that we will accept either. We reserve the right to accept or reject any Product for any or no reason.
A. Before You Submit a Product.
To help the Product approval process go as smoothly as possible, you can avoid common mistakes that may automatically result in our rejection of your Product. Please understand that even if you follow these guidelines, it does not guarantee our acceptance of your Product.
Before you submit a Product, be sure you do the following:
- Review and comply with our Evaluation Criteria below>
- Test your Product for crashes and bugs>
- Ensure that all Product information and metadata is complete and accurate>
- Make sure that your contact information is correct and up to date>
- Include a detailed explanation of your Product’s functions, including any non-obvious features>
- Where appropriate, include supporting documentation>
- Create your Payment Processor Account (as discussed below)>
- Create your Manufacturer Account>
TIP: If we are unable to access your complete Product, for example, because it is geo-locked or for any other reason, you will need to provide a link to a video or provide another means of showing us its functionality.
B. How to Submit a Product.
(i) Once you've completed the steps detailed above, you may submit a Product to us for our approval. In order to complete this process, you will need to follow the submission process at store.cherryaudio.com.
(ii) You will also need to (1) include all necessary metadata; and (2) agree to all the terms of this Agreement by clicking "YES" at the conclusion of this Agreement. In the event you click "NO", at the conclusion of this Agreement, your Product will be disqualified automatically.
C. How we Evaluate a Product.
(i) Once you have submitted a Product and accompanying metadata to us, and provided you have agreed with all the terms of this Agreement, we will endeavor to evaluate it in a timely manner. While this process often takes 10-15 days, our ability to evaluate your Product depends on multiple factors and we cannot guarantee a specific time for this process.
(ii) Complex Modules. If your Product is complex or presents new or unique issues or functionality, it may take us more time to evaluate it. If your Product has already been rejected for any reason or we discover that you have attempted to manipulate or influence reviews of it or our review process, we reserve the right to automatically reject your Product without evaluation.
(iii) Progress: The status of your Product approval is reflected on your product Dashboard, so you can monitor its progress from there.
(iv) Feedback: Our goal is to be fair and consistent. If your Product is rejected and you have questions or would like to provide additional information to help us reevaluate it, please use the Resolution Center to communicate with our Module Review team.
(vi) Appeals. If we reject a Product, we will try to provide you feedback as to why. After corrections are made by you, you may, under most circumstances, resubmit it for our further consideration, provided that any prior rejected Product may be rejected without further comment or appeal.
TIP: You will need to use our Dashboard to submit, monitor, and resubmit your Products.
D. Our Evaluation Criteria.
The following is a general list of the criteria we use when evaluating Products (our “Content Requirements”). Be aware that we may use additional criteria without prior disclosure to you, as we determine in our sole and good faith discretion:
(i) Your Product cannot include objectionable content. Objectionable content includes but is not limited to the following:
- Defamatory, discriminatory, inflammatory, or mean-spirited content, including references or commentary about religion, race, sexual orientation, gender, national/ethnic origin, or other targeted groups, particularly if the Product is likely to humiliate, intimidate, or place a targeted individual or group in harm's way.
- Portrayals of people or animals being killed, maimed, tortured, or abused, or content that encourages violence.
- Sexual or pornographic material.
- False or misleading information, including, without limitation, false or misleading descriptions of your Product's features or functionality.
(ii) Your Product must achieve a quality and standard we deem reasonably acceptable:
- It must be complete, meaning that all features presented are fully functional.
- It must be thoroughly tested. We will not accept an untested Product.
- All features must be reasonably documented.
- It must not include hidden or undocumented features.
- You must not encourage or suggest to potential licensors that they purchase or license external products, software, or hardware without our prior approval.
- Prior to submission, you must secure all intellectual property rights to all materials and resources used with or incorporated in your Product, including all software, artwork, resources, and other assets.
- Your Product must not include any Open Source software in violation of Section 3(G)(ii)(v).
- Your Product must run as efficiently as possible. TIP: You may want to use a Java profiler to help determine the efficiency of your Product.
- Your Product must be free of software defects and bugs.
- Your Product must be free of viruses, files, computer code, and programs that could or do harm or disrupt the normal operation of the operating system and/or hardware features of the system on which it is executing or communicating. Please note that any violation of this provision, either before our acceptance or afterward, will result in immediate rejection and/or removal or your User Modules from our Stores and/or our Additional Distribution Channels.
(iii) Your Product must comply with our Business Criteria:
- You may not make available any Product or other product or offering whose primary purpose is to facilitate the distribution of products outside of our Stores or Additional Distribution Channels. Additionally, you may not encourage users to buy external products, software, or hardware, other than the products, software, and hardware we offer directly on our Stores and Additional Distribution Channels, unless approved by us in advance.
- You cannot create or include links or functionality in your Product to third-party software, extensions, or plug-ins without our prior approval.
- Your Product and any marketing or product information related to it cannot display or facilitate the display of advertisements.
- You cannot review your own Product or attempt to influence their popularity TIP: Try creating something new and novel. Products that don't provide new functionality e.g. repackaging existing algorithms, may be of little value to the community.
(iv) Your Product must comply with our Design Criteria:
- Don't be a copycat. Come up with your own ideas. Don't copy another Product and don't make minor changes to another Product's name or user interface to try and pass it off as your own. TIP: In addition to risking an intellectual property infringement claim, doing this makes our Stores harder to navigate and just isn't fair to your fellow developers.
- Don't Spam. Don't create iterative versions of a Product with only minor changes or that are substantially similar to each other. Instead, create a single Product that includes more functionality. Spamming our Stores may lead to your Product's removal.
(v) Your Product must not collect or attempt to collect data or information:
- Your Product are not allowed to collect nor do we provide any user data or information, other than sales as provided in this Agreement or later agreed in writing by us.
- Your Product cannot scan or collect or attempt to scan or collect data from a user's hard drive, system memory or any other device or storage mechanism, or monitor user input or output.
(vi) Your Product must not infringe the intellectual property rights of any third-party.
- Do not use any protected third-party material or intellectual property in your or with your User Module, including but not limited to trademarks, copyrighted works, or patented technology or processes unless you have obtained written permission and a specific license from that third-party to do so.
- Do not use misleading, false, or copycat representations, names, or metadata in your module or developer name that may be associated with any person or celebrity (other than yourself), third-party or is otherwise likely to confuse consumers or the public.
- Your Product must be submitted by the person or legal entity that owns or has licensed the intellectual property and all other necessary intellectual property rights.
- Do not suggest or infer that Cherry Audio is a source or supplier of your Product, or that Cherry Audio endorses any particular representation regarding any your Product’s quality or functionality.
3. LICENSING USER MODULES TO OTHER USERS.
A. Once we have accepted a Product for licensing on our Stores it will automatically appear on our Stores upon our acceptance. If your Product is accepted by us for inclusion in our Additional Distribution Channels, we will contact you further instructions if necessary.
4. OTHER LEGAL REQUIREMENTS.
A. Sales Terms.
(i) License not a Sale. You understand and agree that when a Consumer acquires one of your User Module licenses through our Stores or through our Additional Distribution Channels, the Consumer is acquiring a right to use that Product in accordance with the terms of an end user licensing agreement made between Cherry Audio and that Consumer. You agree that your Product licenses approved for sale on our Stores and through our Additional Distribution Channels will be licensed and not sold to Consumers.
(ii) Consumer Access. You understand and agree that Consumers who have purchased a license to your Product via our Stores or through our Additional Distribution Channels will have the ability to access and download your Product for as long as we make it available to them through each respective distribution means, subject to the terms of our end user licensing agreement with each such Consumer.
(iii) Sales Channel Limitation. You understand and agree that your Product and Product licenses can be distributed only through our Stores and through our Additional Distribution Channels. If you would like to sell a Product by another means, please contact us.
(iv) No Promise of Distribution. You understand and agree that even if Cherry Audio accepts your Product for sale on our Stores and/or through our Additional Distribution Channels, we are not obligated to use, distribute, or continue to distribute the same, and we reserve the right to restrict or remove any Product from our Stores and/or Additional Distribution Channels for any reason.
(v) Ratings. You agree we have the right to make Product ratings and reviews available to Consumers and third-parties. As a result, Consumers and others may rate your Product in accordance with standards that we set from time to time at our sole and good faith discretion. We reserve the right to display ratings and reviews in conjunction with your Product listings and marketing at our sole discretion.
(vi) Use of our Stores. You agree that you will use our Stores and Additional Distribution Channels only for the purposes permitted by this Agreement and subject at all times to applicable laws and regulations.
(viii) Interference. You agree that you will not engage in any activity that interferes with, disrupts, damages, or accesses in an unauthorized manner our Stores and/or Additional Distribution Channels and related technologies and offerings, including our devices, servers, networks, or other properties or services of any third-party we engage or use, including without limitation our Payment Processor.
B. Pricing, Royalties, and Payments.
(i) Product Price. Upon our acceptance of your Product to our Stores and/or Additional Distribution Channels, you may set the sale price for your Product licenses to Consumers provided that the price you establish is never lower than the minimum price we may establish from time to time (our "Minimum Price") or in conformance with our policy for free Products as provided in Section 3(B)(ii) below. If we set a Minimum Price, we will notify you in writing (email will suffice).
(ii) Offering a Product for Free. After our acceptance of your Product on our Stores and/or through our Additional Distribution Channels, you may elect to distribute a limited number of Products for free, subject to our prior approval of the same.
(iii) Currency Conversion. You agree that the monies received by us for all of Product license sales will converted to U.S. Dollars in accordance with our Payment Processors and third-party credit card and banking partner policies and agreements, and by financial standards we may establish from time to time.
(iv) Your Royalty. Unless otherwise notified by Cherry Audio in advance and in writing (email will suffice) we each agree that Cherry Audio will pay you seventy percent (70%) of the actual sale price of your Product license upon our receipt of the same, less (1) credits or cash refunds for returns or non-payment; and (2) bank, credit card, and transaction fees.
(v) Payment Processors. You agree that we may use PayPal, Stripe Connect, or any other means of payment processing in order to complete a license transaction with a Consumer for the purchase of a license to your Product ("Payment Processor(s)"). You further agree to establish an account and to enter into a third-party agreement with our Payment Processors as a condition precedent to the listing or sale of any Product license on our Stores and/or through our Additional Distribution Channels, and that no payment is due to you until (1) you provide us a valid account to any such required Payment Processor; and (2) we receive the subject monies from each such Payment Processor.
(vi) Government Regulations. You agree that if your local government or taxing authority requires a sales or business identification or other requirement (for example, a CRV or VAT number), and we are not obligated to make any royalty payments or pay you any other fees or monies (including no interest) until you provide such required information.
(vii) Taxes. You agree that you are solely responsible for the payment of all taxes and fees that result of the sale of your Product licenses, including sales and use taxes, and all compliance requirements thereto. In the event we are required to provide a government entity any information as a result of this Agreement, you agree to promptly and completely provide it to us. You further agree that in the event you fail to provide us any such information, we may suspend any royalty payments or other fees or monies due to you (without interest) until you provide such information.
TIP: We highly encourage you to consult with a tax specialist to determine your tax liability in connection with your activities related to the sale of Product licenses and this Agreement.
C. Refund Requirements.
(i) Full and Partial Refunds and Product Exchanges. You agree that, at our discretion, we can provide Consumers a full or partial refund for any Product license purchased on our Stores and/or through our Additional Distribution Channels. You agree that all refunds of your Product may be deducted from amounts due to you, including any royalty payments or other fees or monies due to you, as provided in accordance with Section 3(B)(iv).
(ii) Automatic Termination of a Consumer License. We each agree in that in the event a Consumer is provided a refund, the Consumer's license to the Product will terminate.
(i) You agree that you are solely responsible for supporting and maintaining your Product and for addressing any complaints or questions from Consumers or other parties.
TIP: Your failure to promptly address questions and problems often results in lower ratings and sales.
E. TERM AND TERMINATION.
(i) This Agreement will continue to apply until terminated by either you or Cherry Audio as provided herein. Notwithstanding the foregoing, either party may terminate this Agreement at any time by providing notice to the other party.
(ii) Cherry Audio may terminate this Agreement immediately in the event you breach any provision herein, if we are required to do so by law, or we decide to terminate one or more of our Stores and/or Additional Distribution Channels, features, offerings, or otherwise limit the products available on our Stores and/or through our Additional Distribution Channels.
(iii) Upon termination for any reason, all legal rights, obligations, and liabilities that you have provided herein or that may have accrued to us as a result of this Agreement or that are expressed to continue indefinitely shall not terminate.
F. INTELLECTUAL PROPERTY RIGHTS.
(i) Cherry Audio's Reserved Rights. You acknowledge and agree that prior to creating any User Module, you will obtain and maintain from us a valid and current license to Cherry Audio’s Voltage Module Designer under our current End User License Agreement. You acknowledge that no title or ownership in Voltage Module Designer or any of its graphics, art, sounds, software, and all other materials (“Module Designer IP”) is being transferred or assigned to you and that your license therein should not be construed as a sale of any rights in Voltage Module Designer to you or any other party. For avoidance of doubt, Cherry Audio retains all right, title, and interest to Voltage Module Designer and all Module Designer IP, including without limitation, all copyrights, trademarks, trade secrets, trade names, proprietary rights, patents, titles, computer codes, audiovisual effects, themes, characters, character names, stories, dialog, settings, artwork, sounds effects, musical works, and moral rights.
(ii) Your Reserved Rights. We each acknowledge and agree that you own all rights, title, and interest in your Product, subject to the rights and licenses granted to Cherry Audio herein or as otherwise provided in our Voltage Module Designer end user license agreement.
(iii) Cherry Audio's License. You hereby grant Cherry Audio an exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, royalty-free (except with regard to our royalty obligation as provided in Section 3(B)) right and license to use, copy, distribute, modify (for purposes of distribution, e.g. encryption), reproduce, disclose, sublicense (through multiple levels), display, publicly perform, transmit, publish, broadcast, translate, and otherwise make use of in any manner whatsoever, all or any portion of your Product including all materials related thereto, for purposes of marketing, selling, and distributing your Product in accordance with the terms of this Agreement. Except as prohibited by law, you waive, and agree to waive, any moral rights (including attribution and integrity) that you may have in your Product. To the extent not waivable, you irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the rights granted to us in this Agreement and in our Voltage Module Designer end user license agreement.
(iv) Right of Publicity. In conjunction with our sale and marketing of your Product, you grant us the unconditional, perpetual, irrevocable right to use and exploit your name, persona, and likeness in connection with any Product you submit to us for possible inclusion on our Stores and/or our Additional Distribution Channels without any obligation or remuneration to you.
(v) Enforcing your Intellectual Property Rights. You agree that we have no obligation to monitor or enforce your intellectual property rights in your Products, but we do reserve the right to enforce them, including by bringing and controlling actions in your name and on your behalf at our cost and expense. As a result, you consent and irrevocably appoint Cherry Audio LLC as your attorney-in-fact, with the power of substitution and delegation, which appointment is coupled with an interest).
(vi) Ideas and Feedback. We do not accept or consider content, information, ideas, suggestions or other materials other than those we have specifically requested and to which certain specific terms, conditions and requirements may apply. As a result, we do not accept unsolicited materials or ideas, and we take no responsibility for any materials or ideas so transmitted to us. If, despite our policy, you choose to send us content, information, ideas, suggestions, or other materials, you agree that we are free to use any such content, information, ideas, suggestions or other materials, for any purpose whatsoever, including, without limitation, developing and marketing products and services, without any liability or payment of any kind to you.
G. WARRANTIES AND INDEMNITIES.
(i) Our warranty to You:
- You understand and agree that our Stores, Additional Distribution Channels, and all related technologies and functionalities are provided to you without warranty or promise. You understand and agree that your use of all of the foregoing are at your sole risk and that all products, materials, functionality, and use provided in Voltage Module Designer and by means of our Stores and Additional Distribution Channels are provided to you "as-is" and without warranty of any kind.
- You understand and agree that your use of our Stores, Additional Distribution Channels, Voltage Module Designer, and any materials you download or otherwise obtain from us in conjunction with your use of our any of the foregoing is at your own risk and you are solely responsible for any damage to your or another's equipment or loss resulting from your use.
(ii) Your warranties to us:
- You acknowledge and agree that you are eighteen (18) years old or older, or the age of majority in the country in which you reside.
- You represent and warrant that your Product complies with all of our Content Requirements, as set forth in Section 1(D).
- You agree that you are solely responsible for—and Cherry Audio has no responsibility to you or to any third-party for—any breach by you of an obligation under this Agreement or any breach of a third-party contract or government regulation to which you are or should have entered with regard to any Product license sold on our Stores or through our Additional Distribution Channels or any other activity that subjects Cherry Audio to liability, including without limitation of any applicable law or regulation.
- You acknowledge and agree that you are solely responsible for any information, profile, message, text, file, claim, suggestions, image, photo, video, music, sound, or other content or materials that you submit, upload, post, or otherwise provide or make available to us for use on our Stores and our Additional Distribution Channels, including all such information related to your User Module. In conjunction with the prior representation, you further represent and warrant that that images and text you provide to us is intended for us to market your Product and all of the foregoing are truthful, accurate, and do not misrepresent your Product or its functionality.
- You represent and warrant that your Products will not contain any software whether licensed or purchased that includes a requirement to extend a license to any modification or combined work and/or provides for the distribution of the combined or modified product's source code to any party ("Open Source"). TIP: If you are in doubt with regard to your possible use of Open Source software, please contact us.
- You represent and warrant that you are the sole author and owner of all intellectual property rights in your Product and/or that you have obtained all intellectual property rights necessary for Cherry Audio to market and sell your Product licenses on our Stores and through our Additional Distribution Channels, including all necessary patent, trademark, trade secret, copyright, and other proprietary rights.
YOU AGREE TO INDEMNIFY CHERRY AUDIO, ITS VENDORS, AND THIRD-PARTIES, AND EACH OF THESE ENTITIES' RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SUCCESSORS, AGENTS AND ASSIGNS, FOR ALL CLAIMS ARISING FROM OR IN CONNECTION WITH THE USE OR LICENSE OF YOUR USER MODULE BY ANY PARTY, INCLUDING, WITHOUT LIMITATION, ALL CLAIMS ARISING OUT OF OR BASED UPON COPYRIGHT OR TRADEMARK INFRINGEMENT, MISAPPROPRIATION, INVASION OF PRIVACY, DEFAMATION, AND RIGHT OF PUBLICITY; OR (2) ANY BREACH OR ALLEGED BREACH BY YOU OF ANY OF THE TERMS OF THIS AGREEMENT OR APPLICABLE LAWS.
A. In the event that any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be illegal, invalid or unenforceable, such provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement shall be governed and interpreted in accordance with the laws of the State of California without regard to conflicts of law provisions thereof. The parties specifically submit themselves to the jurisdiction of the California state and U.S. federal courts located in Fresno County, California and we each agree that such courts have the sole and exclusive jurisdiction over any and all disputes and causes of action arising out of or relating to this Agreement.
B. We each agree that process may be served in the manner provided herein for giving of notices or otherwise as allowed by California or U.S. federal law. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover all costs and reasonable attorneys' fees incurred by such party.
C. Except as specifically set forth in this Agreement, all notices shall be in writing and deemed duly given upon receipt if delivered in person or sent by registered or certified mail, postage prepaid, or by commercial overnight courier with tracking capabilities, addressed as set forth below, or to such other address as may be provided by written notice in accordance with the foregoing. No modification of this Agreement will be binding upon either party unless made in writing and signed by a duly authorized representative of both parties. Any failure of Cherry Audio to require performance by you of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by Cherry Audio of a breach of any provision hereof by you be taken or held to be a waiver of the provision itself.
D. This Agreement contains the entire agreement and understanding of the parties hereto with respect to the subject matter hereof, and merges and supersedes all prior and contemporaneous agreements, understandings, discussions and writings with respect thereto.
6. BINDING AGREEMENT.
This Agreement forms a legally binding contract between you and Cherry Audio. You further agree that you may not distribute any Products on our Stores or through our Additional Distribution Channels if you do not accept all of the terms this Agreement, and that you have the full legal authority to enter this Agreement on behalf of yourself or the entity you represent.