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 (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 "You" or "Broadcaster") to create programs featuring audio-based content (to be referred to herein as "Internet Radio Programs" or "Internet Radio Programming") for transmission through Live365's Distribution Network. The term "Live365's Distribution Network" includes all end-user interfaces now or hereafter known (including, without limitation, www.Live365.com, www.Athena365.com, third party websites and widgets) and devices capable of receiving streaming transmissions from Live365 servers, including, without limitation, transmissions via the Internet and/or via mobile/wireless technologies. You agree to read this Agreement carefully before creating Internet Radio Programs for transmission via Live365's Distribution Network. By using Live365's Distribution Network 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.
In order to create an Internet Radio Program for transmission via Live365's Distribution Network, you must first register with Live365.com. You agree that your use of Live365's Distribution Network 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.
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 Live365's Distribution Network. You are responsible for paying any applicable taxes and for all non U.S. royalties and licensing fees, hardware, software, service and other costs you may incur in connection with Live365's Distribution Network and your Internet Radio Programs, including costs incurred in connecting to Live365's Distribution Network. Live365 reserves the right, at any time, to charge additional fees for access to Live365's Distribution Network and/or for any of its Services. Live365 will notify you of any such fees by posting information regarding such fees on Live365.com. Certain optional premium or personal plus services are or may be made available to individual Broadcasters for additional fees. 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 and after any free trial period that may be offered; however, your credit card account may be accessed or verified (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 Initial 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; 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 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.
At present, Live365 permits you to create Internet Radio Programs for transmission via Live365's Distribution Network in two different ways. You may create real-time programs, either from your computer or from another Web site, for live transmission via Live365's Distribution Network, using Live365's proprietary live broadcasting technology (such live transmitting shall be referred to herein as "Studio365-Live broadcasting"). Alternatively, you may create Internet Radio Programs for transmission via Live365's Distribution Network by uploading MP3 files from your computer to a secure portion of Live365's Distribution Network from which you then may designate particular selections for inclusion in your Internet Radio Programs, using Live365's proprietary 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 96 kbps when using the mp3PRO codec (or 128 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 Live365's Distribution Network. 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 Live365's Distribution Network, including those transmitted in the form of Live365's broadcasting tools and any other methods currently used or introduced by Live365 in the future:
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, reproduce, 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 section, 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 Live365's Distribution Network 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.
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 Live365's Distribution Network and in promotions associated with Live365's Distribution Network; 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, Live365's Distribution Network 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.
In addition to any other representations and warranties contained herein, you represent and warrant that:
Live365 reserves the right to terminate this Agreement immediately, without notice, for any or no cause, and at any time. Without limiting the preceding sentence, Live365 may terminate your access to Live365's Distribution Network 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 Live365's Distribution Network; (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 Live365's Distribution Network violates any applicable laws.
Broadcaster's services will be terminated when Broadcaster completes the cancellation procedures and receives confirmation of service cancellation via email from Live365. Upon such confirmation, Broadcaster's account will close at the end of the current Term, and Broadcaster will not be billed for another Term. No refunds will be issued for any payments received for the then-current Term, other prepaid services, set-up fees, rush charges or change fees. In addition, Broadcaster may be required to complete a short Web form upon cancellation.
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 Live365's Distribution Network.
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.
This Agreement, including the rights and obligations herein, may be assigned by Live365 for any reason without notice to you or your consent. In the event that such assignment occurs, Live365, its successors, or assigns may terminate this Agreement by giving immediate written notice to you. Notwithstanding such termination, the indemnities, warranties and representations set forth herein shall remain in full force and effect.
Without limiting Section 11 above, you understand and agree that Live365 shall have the right - without notice to you or your consent - to assign this Agreement (and/or certain rights and obligations herein) to a "Broadcast Partner," which is an entity selected by Live365 to provide additional distribution opportunities for your Internet Radio Programs. Live365's Broadcast Partners may be responsible for some or all of the licensing and royalty coverage for your Internet Radio Programs, among other things. On behalf of the Broadcast Partner, Live365 will continue to provide various services for your Internet Radio Programs, including bandwidth, storage, technical support, and billing services.
The interpretation and enforcement of this Agreement shall be governed by the laws of the State of California, without regard to choice of law rules. For any disputes arising out of this Agreement, the Parties consent to the exclusive jurisdiction of the state courts located in San Mateo County, California or the federal courts located in the Northern District of California.
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.
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.
Nothing contained in this Agreement shall be construed as creating any agency, employer-employee relationship, partnership, joint venture or other form of joint enterprise between you and Live365.
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.
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.
Broadcaster hereby indemnifies and holds harmless, and agrees to defend against any third-party claim or action brought against Live365 or any of its parent, subsidiary or affiliated companies, its or their directors, officers, employees, licensees, agents, attorneys, assigns or independent contractors, from and against any and all claims, actions, losses, liabilities, damages, costs and expenses (including legal fees and costs) arising out of or in connection with any claim(s) that would constitute a breach of any warranty, representation, covenant or agreement made by Broadcaster in this Agreement ("Indemnified Claims"). Live365 shall (at Broadcaster's expense) be entitled to participate in the defense of any Indemnified Claim with its own counsel.
All provisions that 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.
IN NO EVENT SHALL LIVE365 BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION LOSS OF REVENUE OR ANTICIPATED PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE, EVEN IF LIVE365 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL LIVE365'S LIABILITY FOR MONETARY DAMAGES ARISING OUT OF THIS AGREEMENT EXCEED THE TOTAL AMOUNT RECEIVED BY LIVE365 FROM THE BROADCASTER DURING THE TERM OF THIS AGREEMENT.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, LIVE365 PROVIDES THE LIVE365 TECHNOLOGY AND SERVICES "AS IS," WITHOUT WARRANTY OR REPRESENTATION OF ANY KIND. LIVE365 EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THIS SECTION CONTAINS THE ONLY WARRANTIES, EXPRESS OR IMPLIED, MADE BY LIVE365. ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARE EXPRESSLY EXCLUDED AND DECLINED. LIVE365 DISCLAIMS ANY IMPLIED WARRANTIES, PROMISES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND/OR NON-INFRINGEMENT, WHETHER AS TO ANY LIVE365 TECHNOLOGY OR SERVICES (INCLUDING ANY TOOLS) RENDERED BY LIVE365 AND/OR THE TECHNOLOGY DEPLOYED IN CONNECTION THEREWITH. LIVE365 MAKES NO REPRESENTATION THAT THE OPERATION OR PROVISION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, AND LIVE365 WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
06-2011-CB