The following terms and conditions (these "Terms") govern your use of the Aviary Editor and any and all data, text, software, code libraries, software development kits, tools, documents, application programming interface (the “API”) any Aviary Content (as defined below) and other materials associated with the Aviary Editor (collectively, the “Aviary Products”) are licensed by Aviary, Inc. (“Aviary”) to you (“Partner”). The Aviary Products licensed by Aviary and certain features and parameters of this license are described in the on-line form you completed on the Aviary web site when you registered to access the Aviary Products, or in one or more completed order forms that may be agreed to from time to time by and between Aviary and Partner (in each case, referred to in these terms as a “Registration Form”). Collectively, these Terms and the terms and conditions set forth in a Registration Form, if any, will constitute a single agreement between Aviary and Partner (combined, this “Agreement”).
The following user-friendly explanation is intended to be a helpful guide to navigating the terms of service. It's not a replacement though - and not all aspects are covered. By agreeing to this agreement, you are agreeing to the legalese, not to this user-friendly guide!
This agreement gives you a license to use Aviary's product. You don't need to sign a separate paper agreement with us - your license is collectively composed of this page, any order forms you agreed to, and the registration form you fill out.
By agreeing to these Terms in the manner specified during the registration process, OR BY USING OR ACCESSING ANY PORTION OF THE PRODUCT, you unconditionally agree to be bound by these Terms, and are becoming a party to this Agreement. Your continued use of the Aviary Products shall also constitute assent to these Terms. If you do not unconditionally agree to all of these Terms, DO NOT USE OR ACCESS ANY PORTION OF THE AVIARY PRODUCTS. If the Terms set out herein are considered an offer, acceptance is expressly limited to these Terms. IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT USE ANY OF THE AVIARY PRODUCTS, IN WHOLE OR IN PART.
If you use any Aviary product (or associated part of our product), you are completely bound to these terms. Your use is just as binding as a signature.
1. Grant of License
Aviary hereby grants Partner a non-exclusive, revocable, nonsublicensable, nontransferable license to download and use the Aviary Products solely to embed a launchable Aviary Editor application within Partner’s mobile or website application(s) specified in the Registration Form (the “Partner Applications”) and to access Aviary Content in connection with such Partner Application. Partner may not install or use the Aviary Products for any other purpose without Aviary's prior written consent. Partner is solely responsible for the operation of the Partner Applications and for any terms and conditions applicable to use of and access to Partner Applications by its users. Partner will not make any representation or warranty on behalf of Aviary concerning the use, availability or features of the Aviary Editor or the Aviary Content.
This license is just for you (or the company you represent). Your license to use Aviary can't be transferred to another app, company, person, etc... You can only use this license to include Aviary in the application you specified in our web form.
Got a better idea for how to use our editor? We're excited to hear it! But you definitely need our permission before you actually do it.
You (and you alone) are responsible for how your users use your own app.
Don't make promises about Aviary's products or otherwise represent Aviary in discussions with your users.
Partner shall not distribute (for free or at a cost) any custom content through its implementation of the Aviary Editor unless otherwise agreed to in writing (including on a Registration Form) by Aviary. Except as expressly and unambiguously authorized under these Terms or in a Registration Form, Partner may not:
- copy, rent, lease, sell, transfer, assign, sublicense, disassemble, reverse engineer or decompile (except to the limited extent expressly authorized by applicable statutory law), modify or alter any part of the Aviary Product or the Aviary Editor without the prior written consent of Aviary;
- otherwise use the Aviary Products on behalf of any third party;
- sell or otherwise receive compensation, without the prior written consent of Aviary, in connection with any product incorporating the Aviary Products where such product contains no additional original, substantive functionality outside of the functionality of the Aviary Editor;
- display or integrate any advertisements on the Aviary Editor or Aviary Content;
- use or integrate the Aviary Products with any application, web site or software other than the Partner Applications;
- enable, require or cause any user to purchase an item or service as a condition to continue use of the Aviary Products; or
- otherwise use the Aviary Products or the Aviary Editor in any manner that exceeds the scope of the licenses granted under this Agreement.
Want to distribute custom content through our editor? Just make sure you have our permission first.
Please respect our intellectual property - we worked really hard to make Aviary great and are trusting you with our hard work. Don't do any of the things in this paragraph.
Agencies, consultants, freelancers and anyone else building or hosting a product for someone else: your client must be the one who agrees to our terms. You can't do it on their behalf.
You can't profit from an app that is really just a thinly veiled shell of our SDK and has no separate valuable functionality to users.
Ads while our editor is not running are fine. Ads while our editor is running are not.
Only use Aviary in the app you registered with us.
You can't use access to Aviary as an upsell inside your product.
Use your good judgement. If there's something not covered in this agreement it's not OK to assume we'd be OK with you doing it first. Just ask us first.
3. Restrictions on Partner Applications
Partner shall not use the Aviary Products in connection with or to promote any products, services, or materials that constitute, promote or are used primarily for the purpose of dealing in: spyware, adware, or other malicious programs or code, counterfeit goods, items subject to U.S. embargo, unsolicited mass distribution of email ("spam"), multi-level marketing proposals, hate materials, hacking, surveillance, interception, or descrambling equipment, libelous, defamatory, obscene, pornographic, abusive or otherwise offensive content, prostitution, body parts and bodily fluids, stolen products and items used for theft, fireworks, explosives, and hazardous materials, government IDs, police items, gambling, professional services regulated by state licensing regimes, non-transferable items such as airline tickets or event tickets, weapons and accessories. Partner agrees that the Partner Applications will, at all times, conform to the requirements of this Section.
We try not to be judgmental, but we cant be associated with certain types of activities for legal, publicity or business reasons. If you're app is shady, illegal or controversial in any way, you should get our permission first before implementing Aviary.
4. Aviary Content
Unless otherwise set forth in a Registration Form, Aviary reserves the right to add, remove, modify or alter any and all content existing within or transmitted through the Aviary Products or the Aviary Editor (the “Aviary Content”), including but not limited to (a) free, sponsored or purchasable content, or (b) installable filters/effects, fonts, stickers, overlays, shapes, tools, masks, props, stamps, frames and other enhancements. In accordance with the foregoing, Aviary grants Partner a nonexclusive, revocable, nonsublicensable (except to Partner’s users), nontransferable license to access and use and display the Aviary Content that is identified on a Registration Form, solely in conjunction with the use of the Aviary Products as integrated with the Partner Applications in accordance with these Terms.
We actively work on improving Aviary's product, especially the content we offer. We will probably make frequent to changes to the content that is available.
All of the content that we make available is licensed to you to use, but only as part of the Aviary Editor experience.
Unless Partner has purchased the “White Label” premium add-on feature, Partner agrees to the following: (a) it will not remove, obscure and/or disrupt Aviary branding credit screens without prior written permission by Aviary; (b) it may not otherwise use the Aviary logo without prior written permission from Aviary; and (c) any use of the Aviary logo in conjunction with the Partner Application shall be less prominent than the logo or mark that primarily describes the Partner Application, and Partner’s use of the Aviary logo shall not imply any endorsement of the Partner Application or website by Aviary.
With respect to any Partner implementation that includes the “White-Label” premium add-on feature, as indicated in a Registration Form, Aviary and Partner agree that Partner may remove any Aviary branding credit screens, Aviary logos, or any other references to Aviary in the Partner Application.
The Aviary logo inside the editor has to be kept as is, unless you have a special agreement with us.
Don't use our logo elsewhere in your product without our permission.
Make sure your users don't get confused that your app was made by or is otherwise endorsed by Aviary. Your branding should always take precedence in your own app.
White Label partners have permission to remove our logos.
6. Creative Control
It's your app - so you decide how it looks (so long as you don't remove our logo from the Aviary editor experience). Also please keep the link to our terms handy.
We might need to use screenshots or other examples of partner app's using Aviary in action as part of standard promotion we do to showcase how our editor is used. You are granting us permission to use your app for this purpose. [NOTE: While we reserve this right, if this is a problem, please just let us know].
7. Proprietary Rights
As between Aviary and Partner, the Aviary Products, the Aviary Editor and all intellectual property rights therein are and shall at all times remain the sole and exclusive property of Aviary and are protected by applicable intellectual property laws and treaties. Except for the limited license expressly granted herein, no other license is granted, no other use is permitted and Aviary (and its licensors) shall retain all right, title and interest in and to the Aviary Products, the Aviary Editor and the Aviary logos. As between the parties, Partner owns and retains all rights to the Partner Applications and to the Partner Materials and all intellectual property rights therein. These Terms do not grant Aviary any ownership rights to Partner Applications or the Partner Materials.
You own your app and all components you built. We own the Aviary editor and all components that we built. Pretty simple.
Each party shall keep confidential and not disclose to any third party, or use for a purpose not contemplated by this Agreement, any non-public information (including without limitation the terms of this Agreement) obtained from the other party (“Confidential Information”); provided, however, that neither party shall be prohibited from disclosing or using Confidential Information that the receiving party can document: (a) has been made publicly available by the disclosing party, (b) is or has been disclosed to such party without restriction by a third party who is not under an obligation of confidentiality with respect thereto, (c) is or has been independently developed by such party, without use of or reference to the other party’s confidential information, by persons without access to the same, or (d) must be disclosed under court order or applicable law, provided such use or disclosure is to the minimum extent required by such court order or applicable law. Aviary may disclose the terms and conditions of this Agreement to its financial and legal advisors, or in connection with a financing, or merger or acquisition of other strategic transaction entered into by Aviary or any Aviary affiliate.
We will keep your product plans and data completely confidential, and ask that you do the same with ours.
The only exceptions are (a) if the data was already made public, (b) or was told to someone else without a requirement of confidentiality, (c) or it technically wasn't made by either of us (eg. details of a third party code library), (d) or we are required by law. Also, we do have professional staff and investors we work with that we need to share certain details of this agreement.
9. Revenue Share for Use of Aviary Content
Partner will pay to Aviary a share of the revenue derived from Partner’s implementation of the Aviary Products during the term of this Agreement (the “Revenue Share”) equal to 70% of the Adjusted Gross Revenue* generated from the sale of Aviary Content or syndication or publication of sponsored Aviary Content within the Partner Application (unless a Registration Form provides for a different percentage). On a monthly basis, Aviary will provide a report to Partner showing Adjusted Gross Revenue generated during the period, and (a) for all Adjusted Gross Revenue from Partner’s implementation of standard, in-application Aviary Content, such report will include an invoice for the Revenue Share due from Partner for such Aviary Content, and (b) for all Adjusted Gross Revenue from Partner’s implementation of sponsored Aviary Content, Partner will separately invoice Aviary for the Revenue Share due from Aviary. In each case, invoices are due and payable within forty-five (45) days of the date on which the invoice was received.
*As used herein, “Adjusted Gross Revenue” means revenue actually received by a party less deductions for commissions, fees (such as credit card processing fees) or royalties paid with respect to the corresponding activity.
You agree to pay us 70% of your gross revenue earned from the sale or publication of Aviary content within your app.
Aviary will send you a monthly report and invoice showing how much gross revenue you earned from Sale content and what the revenue share breakdown is. For published content, you'll send us an invoice. We will pay each other any money owed within 45 days of invoice receipt.
Adjusted Gross Revenue is basically the revenue earned after Apple or Google (or a third party payment provider) takes their cut.
Partner shall pay Aviary any additional fees that are specified in each applicable Registration Form, for example content or license fees for Premium Add-On Features, such as high-resolution output or white labeling (collectively “Fees”). Where applicable, Aviary will invoice Partner separately for all Fees due hereunder, which will be due and payable within forty-five (45) days of invoice.
Partners who have premium add-on features enabled will pay us within 45 days of invoice.
11. Late Payment Interest and Taxes
All amounts due to Aviary hereunder that are unpaid on the due date (including Fees and Revenue Share payments) shall bear a late payment charge, until paid, at the rate of 1.5% per month or the maximum amount permitted by law, whichever is less. If Partner disputes any report or applicable Fees or Revenue Share amounts due, Partner must notify Aviary in writing within ten (10) days of invoice; failure to do so shall constitute Partner’s waiver of any claim relating to such invoice. Partner is solely responsible for paying all applicable taxes or charges imposed by any government entity in connection with the amounts payable under these Terms.
If you don't pay us in a timely manner, you will incur a 1.5% penalty.
You have 10 days from invoice to let us know if you found an error, otherwise we agree that everything is correct. You have to pay your own taxes, if any are due.
12. Trial Review Period
If a Registration Form indicates that Partner’s implementation includes a “Trial Review Period,” upon delivery of the Aviary Products listed in the Registration Form to Partner, Partner will have fifteen (15) days (the “Review Period”) to review and evaluate the Aviary Products. If Partner elects not to accept the Aviary Products, it must notify Aviary within the Review Period, in which case, Partner’s right to use the Aviary Products will terminate and be of no further force or effect. If Partner fails to notify Aviary of its intention to terminate this Agreement within the Review Period, the Aviary Products will be deemed accepted. Termination is Partner’s sole remedy and Aviary’s sole responsibility as a result of Partner’s decision not to implement the Aviary Products for any reason.
We can revoke your license (and you can choose to end your license) at any time, for any reason. We won't take this lightly, but we do hold onto this right should it be needed.
If either party terminates this license, you will need to remove the Aviary API from your code entirely and make sure that any new distributions of your app will have access to our API removed from it. We'll have the right to double-check to make sure you have.
Terminating the agreement ends your ability to use our API. It doesn't change some of the other sections or remove your obligation to owed payments.
13. Term and Termination
These Terms shall be effective from the date of the applicable Registration Form and continue until terminated as set forth below, unless an applicable Registration Form provides for a fixed contract term. Either party may terminate any Registration Form or this Agreement at its own convenience on written notice to the other party. If either party materially breaches these Terms or the terms of a Registration Form (including failure to make any payment hereunder), the other party may terminate this Agreement immediately upon written notice of such breach to the breaching party. Any such termination may be limited to one or more Registration Forms, in which case, the consequences of termination will be limited to the subject matter of that Registration Form.
This agreement will last from registration through written notice of termination (or in the case of pre-agreed upon end dates, until the end-date is reached).
If either party breaches these terms, the other party has the right to terminate. Termination only applies to the particular agreement that has been breached (in cases where multiple agreements exist - for example if a partner has multiple apps).
14. Consequences of Termination
Upon termination or expiration of this Agreement or a Registration Form: (a) all Fees and unpaid Revenue Share that are accrued as of the date of such termination shall become immediately due and payable; (b) Partner shall immediately return to Aviary, remove from the Partner Application or any website or web pages in which code from the Aviary Products that has been embedded, and cease all further use of, the Aviary Products and all copies of any documents, software, drawings, flow charts, structure charts, recording media and any other materials furnished to Partner or used by Aviary in connection with such Registration Form; and (c) any licenses granted to Partner under this Agreement shall immediately terminate. In addition, upon termination or expiration of this Agreement, each party shall return to the other party or destroy (and so certify to the other party) any Confidential Information obtained from the other party. Sections 7, 8, 9, 10, 11, 14, 16, 17, 18, 21 and 22 shall survive any termination or expiration of this Agreement.
If this agreement terminates, the following will happen (a) any money owed will become immediately due, (b) You will remove Aviary from your app completely and otherwise return anything proprietary we have shared with you, (c) All licenses that are part of this agreement will also terminate. Lastly, we will both destroy any confidential information we have received from each other. Also, certain sections of this agreement will still survive termination - see the legalese for the exact list.
15. Versions and Support Responsibilities
Aviary will provide access to the then most-current version of the Aviary Products as of the effective date of each applicable Registration Form. Aviary provides not other technical support for Partner’s use or implementation of the Aviary Products unless specifically agreed to in writing by Aviary. Partner will be solely responsible for providing technical support to Partner’s end users or other customers. Except as set forth in a Registration Form, these Terms do not entitle Partner to any Aviary Product upgrades, unless Partner makes separate arrangements with Aviary.
We'll provide the latest build of our app only, but you are not entitled to any upgrades (though of course you can download any that we make publicly available). We will not provide any other technical support unless we have a specific agreement in place. You are responsible to support your own users.
16. Warranty Disclaimer
THE PRODUCTS, THE AVIARY EDITOR AND THE AVIARY CONTENT ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW, AVIARY AND ITS VENDORS EACH DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE AVIARY PRODUCTS, THE AVIARY EDITOR AND THE AVIARY CONTENT, INCLUDING WITHOUT LIMITATION ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, RESULTS OF USE, RELIABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, INTERFERENCE WITH QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. FURTHER, AVIARY DISCLAIMS ANY WARRANTY THAT PARTNER’S USE THEREOF WILL BE UNINTERRUPTED OR ERROR FREE.
This editor is provided completely as-is. It might be broken, or occasionally unavailable or have other issues (infringing on someone else's rights). Look, we really hope none of these things ever happen and will act as professionally as possible to make sure that's the case, but bottom-line, anything is possible: Use this at your own risk.
Partner agrees to defend (or settle), indemnify and hold harmless Aviary, its respective directors, officers, employees, agents, successors and assigns from and against any and all damages, liabilities, costs and expenses (including reasonable legal fees) payable to a third-party (collectively “Losses”) incurred as a result of a third-party claim, cause of action, judgment or proceeding relating to or arising out of the Partner Application or Partner Materials or any use of the Aviary Products in conjunction with the Partner Application or the Partner Materials. The foregoing indemnity obligations are conditioned upon Aviary providing Partner prompt written notice of any such claim, reasonable cooperation and sole control over defense and settlement thereof.
You indemnify us should a third party sue you relating to your use of Aviary's editor. On our end, we are obligated to keep you in the loop, cooperate with you to the best of our ability and give you sole control over deciding how to proceed, should anyone with a legal claim reach out to either of us.
18. Liability Limitation
NOTWITHSTANDING ANYTHING ELSE HEREIN, EXCEPT FOR ANY LIABILITY OR DAMAGES ARISING OUT OF SECTION 8 (CONFIDENTIALITY) OR SECTION 15 (INDEMNIFICATION), IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR ANY OTHER LEGAL OR EQUITABLE THEORY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES. IN NO EVENT SHALL AVIARY’S AGGREGATE LIABILITY IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OR THEORY OF THE CLAIM OR ACTION, EXCEED THE GREATER OF: (A) THE TOTAL AMOUNT PAID (OR, IN THE CASE OF PARTNER, PAYABLE) TO AVIARY BY PARTNER HEREUNDER; AND (B) FIVE THOUSAND DOLLARS ($5,000).
THIS SECTION IS IN ALL CAPS SO ITS REALLY IMPORTANT WE GUESS. BASICALLY: WE AGREE THAT WE CAN'T SUE EACH OTHER. But if for some reason you do sue us anyway (???), the most you can sue us for is how much you paid us (capped at $5,000).
19. Government Use
If Partner is part of an agency, department, or other entity of the United States Government ("Government"), the use, duplication, reproduction, release, modification, disclosure or transfer of the Aviary Products are restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. All Aviary Products are "commercial items," "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212 and are provided to the Government (a) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (b) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 (JUN 1995) and 227.7202-3. In accordance with such provisions, any use of the Aviary Products by the Government shall be governed solely by these Terms.
If you work for the government, you probably should just double-check this particular section of legalese extra carefully.
20. Export Controls
Partner shall comply with all applicable export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control ("OFAC"), or other United States or foreign agency or authority, and Partner shall not export, or allow the export or re-export of the Aviary Products in violation of any such restrictions, laws or regulations. By downloading or using the Aviary Products, Partner agrees to the foregoing and represents and warrants that Partner is not located in, under the control of, or a national or resident of any restricted country.
To those of you on the USA's embargo list, we respectfully apologize that our countries are currently being mean to each other and look forward to the day where we can do business together.
Any notices in connection with this Agreement will be in writing and sent by first class US mail, confirmed facsimile or major commercial rapid delivery courier service to the address set forth in a Registration Form or such other address as may be properly specified by written notice hereunder. Notices will be deemed effective upon receipt.
All notices between the parties that are tied to this agreement must be delivered in writing.
These Terms and the terms contained in any Registration Forms constitute the entire agreement between Partner and Aviary pertaining to the subject matter hereof, and supersedes any and all written or oral agreements with respect to such subject matter. This Agreement, and any disputes arising from or relating to the interpretation thereof, shall be governed by and construed under New York law as such law applies to agreements between New York residents entered into and to be performed within New York by two residents thereof and without reference to its conflict of laws principles or the United Nations Conventions for the International Sale of Goods. Any action or proceeding arising from or relating to this Agreement must be brought in a federal court in the Southern District of New York or in state court in New York County, New York, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. The prevailing party in any action arising out of these this Agreement shall be entitled to an award of its costs and attorneys' fees. No waiver, change, or modification to this Agreement will be effective unless in writing signed by both parties. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of either party to act with respect to a breach of this Agreement by Partner or others does not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches. This Agreement may not be assigned or transferred for any reason whatsoever by Partner without Aviary's prior written consent and any action or conduct in violation of the foregoing shall be void and without effect. Notwithstanding the foregoing sentence, Partner may assign this Agreement to an entity that acquires all or substantially all of its assets by merger, acquisition or otherwise and Aviary expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder, provided Aviary will at all times remain liable for any such assignee or delegate.
This is the entire agreement between Aviary and your app. Anything we may have discussed over the phone or in a separate agreement, etc. doesn't count.
Looking to sue us? Come visit sunny NYC and do some shopping in the financial district during your stay here!
Whomever wins a lawsuit has to pay for the other party's legal fees. Drinks would be appreciated too.
If both of us agree a change to this agreement is in order, we must do so in writing with legible signatures.
Let's say our lawyer goofed and a certain paragraph is deemed to be "legally dumb." The rest of the agreement still stands.
Just because one of us doesn't act to acknowledge a breach of this agreement, doesn't mean we give up the right to ever do so.
This agreement is between Aviary and you. You can't give this agreement to someone else without our written permission...
...unless you are acquired. Then it's cool. And congratulations!
Aviary may assign this agreement to a third party our obligations under it, but we're still liable for it.
Woohoo, you're all done (assuming you read the actual legalese)! It's currently a hot muggy September day in NYC. Now it's time for us to go get a stiff drink of ice tea and cool off in the shade. Have a great day and thanks for reading!
Last Updated February, 2015