Broadcaster Agreement for Organizations / Groups / Businesses

Terms of Use

Privacy Policy

Legal FAQ

The Rules

This Broadcaster Agreement for Individuals / Natural Persons ("Agreement") sets forth the terms and conditions under which Live365, Inc., and its affiliates, successors, parents, subsidiaries, assigns, licensees, and designees, which owns and operates the website Live365 (collectively, "Live365") permit you, an individual broadcaster acting as an individual and not on behalf of any group, organization or other entity, hereinafter referred to as Broadcaster, to create programs featuring audio-based content (to be referred to herein as "Internet Radio Programs" or "Internet Radio Programming") for transmission via the Live365.com Web service and Web site (collectively, the "Site"). You agree to read this Agreement carefully before creating Internet Radio Programs for transmission via the Site. By using the Site and the Services (as that term is defined in Live365's Terms of Use), you acknowledge that you have read and agree to abide by the terms and conditions set forth in this Agreement.

1. Registration and Compliance with the Terms of Use

In order to create an Internet Radio Program for transmission via the Site, you must first register with Live365.com. You agree that your use of the Site is subject to the general terms and conditions contained in Live365's Terms of Use (the "Terms of Use"). You further confirm and represent that you have read and reviewed the Terms of Use and that you agree to be bound by the Terms of Use. To the extent that the Terms of Use conflict with the terms and conditions set forth herein with respect to your Internet Radio Programming activities, this Agreement shall govern.

2. Fees and Costs

Live365 currently charges individuals (natural persons) for the non-commercial use of the tools relating to the basic broadcasting service, enabling them to transmit Internet Radio Programs via the Site. You are responsible for paying any applicable taxes and for all hardware, software, service and other costs you may incur in connection with the Site and your Internet Radio Programs, including costs incurred in connecting to the Site via the Internet. Live365 reserves the right, at any time, to charge additional fees for access to the Site and for any of its Services. Live365 will notify you of any such fees by posting information regarding such fees on the Site. Certain optional premium or personal plus services are or may be made available to individual Broadcasters for an additional fee, including additional simultaneous listeners and additional storage space. The fees for such services are available on the Personal Broadcast Services Order Form. In enrolling as a Broadcaster, you will choose an Initial Term, which shall be defined as the initial length of time for which you subscribe to such premium or personal plus services. For any Initial Term, the associated fee shall be charged to your credit card or debited from your bank account (as applicable) upon acceptance of this Agreement by Live365, Inc and after any free trial period that may be offered; however your credit card may be authorized (without being charged) immediately upon your acceptance of this agreement to test its validity. All Initial Terms are subject to automatic renewal for the same length as the Intial Term. For the purposes of this agreement, an Initial Term that has been automatically renewed shall be referred to as a Term. At the end of each subsequent Term, another Term will be charged each to your credit card or debited from your bank account (as applicable), unless the service is cancelled in accordance with our Refund and Cancellation Policy as outlined in Section 8 of this agreement. However, if the fees being billed are for services that will not be subject to automatic renewal, such fees will be charged in full immediately. Live365 reserves the right to increase the fees and/or change services on the provision of 7 days' written notice to the Broadcaster, but will make commercially reasonable efforts to provide more notice if possible; if Broadcaster disagrees with such increase, Broadcaster may discontinue the service. Live365 reserves the right to charge Broadcaster for credit or debit card charges (billed on a recurring basis), where applicable. If the fees are not paid within 10 days of the due date, Live365 may elect to charge interest on outstanding fees at the rate of 1.5% per month or the maximum amount allowed by law, and/or charge a late fee, and/or may terminate the service. Broadcaster must provide notice of billing discrepancies within 30 days of the date of the charge or debit, otherwise Broadcaster shall be deemed to have accepted the amounts due and releases Live365 from any liability and claims of loss resulting from any error or discrepancy. The Refund and Cancellation Policy for any such fees is defined below under Section 8.

3. Rules Relating to the Transmission of Internet Radio Programs

At present, Live365 permits you to create Internet Radio Programs for transmission via the Site in two different ways. You may create real-time programs, either from your computer or from another Web site, for live transmission via the Site, using Live365's proprietary live broadcasting technology (such live transmitting shall be referred to herein as "Studio365-Live broadcasting"). You may alternatively create Internet Radio Programs for transmission via the Site by uploading MP3 files from your computer to a secure portion of the Site from which you then may designate particular selections for inclusion in your Internet Radio Programs, using Live365's proprietary looped broadcasting software (creating Internet Radio Programs by uploading your own MP3 files shall be referred to herein as "Studio365 Basic broadcasting"). The maximum bit rate of your Internet radio program may not exceed 64 kbps when using the mp3PRO codec (or 56 kbps when using the mp3 codec) unless prior written approval has been granted by an authorized representative of Live365, Inc. From time to time, Live365 may introduce other methods by which you may create Internet Radio Programs for transmission via the Site. You agree to comply with all of Live365's Terms of Use, policies and rules posted or provided to you, individually. These rules are subject to change from time to time at Live365's sole discretion. Also, you agree to comply with the following rules, in addition to all other legal requirements and rules, including those identified in other paragraphs of this Agreement, with respect to all Internet Radio Programs created by you for transmission via the Site, including those transmitted in the form of Live365's broadcasting tools and any other methods currently used or introduced by Live365 in the future:

 

1. Any Internet Radio Programs relayed to Live365 from a Web site owned and operated by a third party ("Derived Programs") must be authorized by the owner(s) of rights in the original programs from which such Internet Radio Programs are derived. In the event you choose to create Derived Programs for transmission via the Site, you represent and warrant that you have obtained all authorization necessary to allow such Derived Programs to be transmitted to the public via the Site, including any necessary licenses required under the Digital Millennium Copyright Act (the "DMCA"), U.S. Copyright Law, and any other applicable copyright laws (requires Adobe Acrobat plug-in).

    

2. Software for any broadcasting tool which must be downloaded to your computer from the Site, and your use of such software, shall be subject to the terms and conditions of separate End User License Agreements.

    

3. To the extent that you choose to create Internet Radio Programs in the form of Studio365 broadcasting, Live 365 agrees to provide you with such amount of storage space on Live365's servers as determined by Live365. Depending on Live365's then-current policies with respect to such storage space, which will be specified on the Site, such storage space may be made available for free or for a charge. Fees for additional storage space are available on the Personal Broadcast Services Order Form. You agree not to exceed whatever storage space, if any, that may be allotted to you, which amount may be modified by Live365 at any time in its sole discretion, subject only to other express terms posted on the Site or specified elsewhere in this Agreement.

    

4. You must complete a License and Release for each and every sound recording uploaded by you for posting in Live365.com's general library for access and use by other individuals creating Internet Radio Programs for transmission via the Site (but not for sound recordings uploaded to your personal storage area for inclusion solely in your own Internet Radio Programs). To the extent the Internet Transmission Agreement conflicts with the License and Release with respect to any sound recordings uploaded by you to the Site, the terms of the License and Release shall govern with respect to any such sound recordings.

    

5. You agree not to post, upload or transmit to or through the Site any sound recordings that:

    

   1. are obscene, fraudulent, indecent, discourteous, racially offensive or abusive;

       

   2. defame, abuse, harass or threaten others;

       

   3. contain any viruses, Trojan horses, worms, time bombs, cancelbots, or other disabling devices or other harmful component intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information;

       

   4. advocate or encourage any illegal activity;

       

   5. violate the privacy of individuals, including other users of the Site; or

       

   6. violate any applicable local, state, national, or international law (including, without limitation, the DMCA).

      Live365 in its sole discretion shall determine your compliance with the foregoing rules, and reserves the right to delete from the Site without prior notice any material that it deems to be non-complying or otherwise objectionable for any reason. Live365 may take any action with respect to your Internet Radio Programs, or any other material posted by you on the Site, if Live365 believes, in its sole and exclusive judgment, that such Internet Radio Programs and/or other material may result in liability being imposed upon Live365 or may cause Live365 to lose (in whole or in part) the services of its ISPs or other suppliers.

    

6. You are not permitted to use Live365's name, URL, trademarks, copyrights or other right or properties in connection with "spam" email messages or newsgroup postings. For the purposes of this Agreement, "spam" has the meaning generally understood among Internet users, and includes without limitation "unsolicited electronic mail advertisements" as that phrase is defined under California Business and Professions Code section 17538.45. You may not impose an unreasonable or disproportionately large load (as determined by Live365 in light of the load imposed by other users generally) on Live365's infrastructure. You may not use any "bot" or other automated repetitive or iterative mechanism or the like to gain any sort of benefit from Live365 or any of its business partners.

 

7. You agree to comply with all laws and regulations applicable to your use of the Site and any materials you upload to, import onto or transmit via Live365's servers.

    

8. You may not make any Internet Radio Programs generated by or transmitted via the Site or Live365's servers available on any other Web site or in any other medium; provided, however, you may make Internet Radio Programs that you have created available on Web sites that are wholly owned and controlled by you.

    

9. The DMCA imposes certain requirements and rules with which persons subject to US law who are transmitting Internet Radio Programs must comply. Without limiting the applicability of all other laws, rules and contractual provisions that may govern your activities, you agree to comply with the following specific DMCA rules in connection with your Internet Radio Programs (for additional information, please see Live365.com's Internet Radio Programming FAQs), including but not limited to the following:

    

   1. You may not include in your Internet Radio Programs specific sound recordings within one hour of a request by a listener or at a time designated by the listener.

       

   2. In any three-hour period, you should not intentionally program more than three songs (and not more than two songs in a row) from the same recording; you should not intentionally program more than four songs (and not more than three songs in a row) from the same recording artist or anthology/box set.

       

   3. Continuous looped Internet Radio Programs may not be less than three hours long.

       

   4. Retransmissions of Internet Radio Programs may be performed at scheduled times as follows:

       

      1. Internet Radio Programs of less than one hour: no more than three times in a two-week period;

          

      2. Internet Radio Programs longer than one hour: no more than four times in any two-week period.

          

   5. You should not publish advance program guides or use other means to pre-announce when particular sound recordings will be played or the order in which they will be played.

       

   6. You should only include in your Internet Radio Programs sound recordings that are authorized for performance in the United States.

       

   7. You should pass through (and not disable or remove) identification or technological protection information included in the sound recording (if any).

4. License

With respect to your Internet Radio Programs, you grant Live365 the royalty-free, non-exclusive, perpetual right and license throughout the world to transmit, perform publicly, display publicly, perform digitally, distribute and syndicate your Internet Radio Programs in whole or in part, for any and all purposes, to the extent permitted by law, and the right to grant to third parties the right to do any or all of the foregoing. Without limiting the foregoing provisions of this paragraph 4, Live365 shall have the royalty-free, non-exclusive, perpetual right and license throughout the world to transmit and permit its end users, and other Internet Web site operators and their end users, to access your Internet Radio Programs via the Site and any other Web sites. Live365 shall not be liable for any unauthorized uses of your Internet Radio Programs by end users or any other third parties.

5. Advertising, Sponsorship, Commissions and Other Revenue Opportunities.

You acknowledge and agree that Live365 may: (a) serve banner advertisements, audio advertisements and other forms of advertisements and promotions in connection with your Internet Radio Programs; (b) derive sponsorship revenue, commissions, syndication fees, and other forms of revenue based on or in connection with your Internet Radio Programs; (c) include your user name and descriptions of your Internet Radio Programs in a directory on the Site and in promotions associated with the Site; and (d) in cases where your Internet Radio Programs are performed via an audio player that has the ability to display visual material, serve Live365 visual material simultaneously with the delivery of your Internet Radio Programs to the extent permitted by law. You agree not to block, delete or otherwise interfere with Live365's ability to serve advertising or display sponsored content on, or related to, the Site and/or your Internet Radio Programs. You agree that Live365 has the right to place and conduct all advertisements, sponsorships and promotions, and collect all forms of commissions and other revenue, without compensation to you of any kind. The timing, frequency, placement and extent of advertising, sponsorships and promotions by Live365 in connection with your Internet Radio Programs is subject to change and shall be determined by Live365 in its sole discretion. You agree that you may not incorporate any advertising, or conduct any other paid sponsorship or promotional activities of any kind or nature, in or in connection with your Internet Radio Programs.

6. Representations and Warranties

In addition to any other representations and warranties contained herein, you represent and warrant that:

 

1. you have full right and power to enter into and perform this Agreement, and have secured all third-party consents necessary to enter into this Agreement;

    

2. you are a natural person and are acting solely in your capacity as an individual, and are not acting for or on behalf of any group, organization, club, association, company or other entity in any fashion, in creating and broadcasting any Internet Radio Programs;

    

3. all factual assertions that you have made and will make to Live365 are true and complete;

    

4. you are of the age of majority and have the full and complete right to agree to the terms contained in this Agreement;

    

5. neither your Internet Radio Programs nor any parts thereof defame any third parties, constitute impermissible hate speech or otherwise violate any rights of free speech of any third parties;

    

6. your Internet Radio Programs comply fully with all relevant provisions of the DMCA (requires Adobe Acrobat plug-in) and any and all other applicable laws and regulations;

    

7. neither your Internet Radio Programs nor any parts thereof infringe upon the copyright or any other statutory or common-law intellectual property rights (including without limitation trademark, service mark, and trade name rights), proprietary rights (including without limitation trade secrets), or rights of privacy or publicity of any third party; and

    

8. with respect to each sound recording uploaded by you to Live365, either:

    

   1. you own or control all rights in any such sound recording including all rights in the underlying musical composition; or

       

   2. [A] all writers of the songs embodied in the sound recording are affiliated with BMI, ASCAP or SESAC; and [B] the sound recording is subject to a compulsory license under the DMCA, 17 U.S.C. § 114 (requires Adobe Acrobat plug-in).

7. Termination

Live365 reserves the right to terminate this Agreement immediately and without notice for any or no cause, at any time. Without limiting the preceding sentence, Live365 may terminate your access to the Site immediately and without notice if: (a) you breach this Agreement; (b) you infringe the intellectual property rights of any third party in connection with your use of the Site; (c) Live365 is unable to verify or authenticate any information you provide to it; or (d) any material uploaded or transmitted by you to or via the Site violates any applicable laws.

8. Refund and Cancellation Policy

There will be no refunds for current, paid service after three (3) days of which service has been rendered. In addition, cancellation of all services requires written notice, which must be received at least 30 days before the start of your next Term. Written notice may be mailed to Live365, Inc., 950 Tower Lane, Suite 400, Foster City, CA 94404 or emailed to cancellations@live365.com. No refunds will be paid on current paid service, prepaid services, setup fees, upgrade fees, rush charges or change fees. You may request a refund in writing at the above address or by email to billing@live365.com within three (3) days of purchase of any Live365 services. Live365 may choose, but is not obligated, to issue a refund on a case by case basis. Live365 may choose, but is not obligated, to offer prorated credits toward new service upon change or upgrade to existing pre-paid service(s). Remember, if you would like to cancel your service at the end of the current paid Term, you must provide at least thirty (30) days written notice, or your service will automatically extend and you will be billed for an additional Term of the same length as your previous Term.

9. Further Actions Necessary

You agree to sign such other and further documentation as may be required to effectuate the grant of rights and release contemplated herein. You further agree, promptly upon the request of Live365, to produce any and all documents and other evidence related to your rights to create your Internet Radio Programs for transmission via the Site.

10. Adequacy of Consideration

You understand and agree that the consideration specifically recited in this Agreement is the complete and total consideration due to you from Live365, and you shall not look to Live365 for any compensation or further consideration of any kind.

11. Assignment.

This Agreement may be assigned by Live365. Live365 may, without the other Party's consent, assign this Agreement to (i) a parent, subsidiary, affiliate, division or corporation controlling, controlled by or under common control with the Party; (ii) a successor corporation related to the Party by merger consolidation, bankruptcy reorganization or government action; or (iii) a purchaser of substantially all of the Party's assets. In the event that such assignment occurs, Live365, its successors, or assigns may terminate this Agreement by giving immediate written notice to Broadcaster. Notwithstanding such termination, the indemnities, warranties and representations set forth herein shall remain in full force and effect.

12. Choice of Law; Venue; Dispute Resolution

The interpretation and enforcement of this Agreement shall be governed by the laws of the State of California, without recourse to its conflicts of laws principles. You and Live365 agree that any and all disputes arising out of or related to this Agreement shall be resolved solely through binding arbitration pursuant to the provisions of this paragraph 11 and the then-current rules of the American Arbitration Association (to the extent not inconsistent with this paragraph 11). Any arbitration arising out of or related to this Agreement shall be held in San Mateo County, Foster City, California, before one independent arbitrator agreed upon by both parties. Any arbitration will be final and binding, and the arbitrator's order will be entered and enforceable in any court of competent jurisdiction. The arbitrator will be chosen within thirty (30) days of the submission of any issue to arbitration, the discovery (if any) will be completed within sixty (60) days thereafter, the hearing will occur within thirty (30) days thereafter and the arbitrator must render his or her decision, in writing, within thirty (30) days after the end of such hearing.

13. Remedy

Your sole remedy for any breach of this Agreement by Live365 shall be an action at law for money damages, if any. In no event shall you be entitled to injunctive or other equitable relief based on any act or omission of Live365, or any breach of this Agreement by Live365.

14. Entire Agreement

This Agreement constitutes the entire understanding of the parties with respect to the subject matter hereof. There are no understandings, agreements, conditions or representations, oral or written, express or implied, with reference to the subject matter hereof, that are not merged herein, expressly referenced herein, or superseded hereby.

15. Independent Contractor

Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise between you and Live365.

16. Severability

The provisions of this Agreement are independent of each other and the invalidity of any provision or a portion thereof shall not affect the validity or enforceability of any other provision. In the event that any particular provision is found to be invalid or unenforceable, such provision shall be deemed to have been replaced with a valid and enforceable provision that approximates as closely as possible the intent of the parties as reflected in the original provision.

17. No Waiver

Any delay or failure on the part of Live365 to enforce any rights hereunder to which it may be entitled shall not be construed as a waiver of the right and privilege to do so at any subsequent time.

18. Indemnification

You indemnify and hold harmless Live365, and the officers, directors, employees, partners, principals, agents and representatives of Live365, from, against and in respect of any and all demands, claims, actions, causes of action, liabilities, losses and expenses, including reasonable attorneys' fees, arising out of or relating to any breach by you of any covenant, representation or warranty made by you in this Agreement, including, without limitation, any claims that your Internet Radio Programs violate the intellectual property rights of any third parties, defame any third parties, constitute impermissible hate speech or otherwise violate any rights of free speech of any third parties.

19. Survival

All provisions which must survive in order to give effect to their meaning shall survive any expiration or earlier termination of this Agreement, including, without limitation all of your representations, warranties and indemnification obligations.

20. Disclaimer of Warranties; Limitation of Liability

EXCEPT AS SPECIFIED IN THIS AGREEMENT, LIVE365 DOES NOT MAKE ANY WARRANTY IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE REGARDING SUCH SUBJECT MATTER. IN NO EVENT WILL LIVE365, INC BE LIABLE TO YOU FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WHETHER OR NOT LIVE365 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. LIVE365 MAKES NO REPRESENTATION THAT THE OPERATION OF THE LIVE365.COM SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, AND LIVE365 WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.