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.
You agree not to post, upload or transmit to or through the Site any sound recordings that:
Live365 in its sole discretion shall determine your compliance with the foregoing rules, and reserves the right to delete from Live365's Distribution Network 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 Live365's Distribution Network, 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.
The DMCA imposes certain requirements and rules governing the use of copyrighted material such as sound recordings with which persons subject to U.S. law that are transmitting Internet Radio Programs containing such sound recordings 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 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:
Retransmissions of Internet Radio Programs may be performed at scheduled times as follows:
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:
with respect to each sound recording uploaded by you to Live365, either:
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.
Cancellation of Broadcaster's personal broadcasting services requires following the instructions at www.live365.com/cancel or going through the following procedures:
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, Live365 may assign this Agreement (and/or certain rights and obligations herein) to a "Broadcast Partner," which is an independent party that may provide additional distribution opportunities for your Internet Radio Programs and 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 may continue to provide various services for your Internet Radio Programs, including bandwidth, storage, technical and customer 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.
You hereby indemnify and hold harmless, and agree 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 relating to any breach by you of any warranty, representation, covenant or agreement made by you 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, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, 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 OR RELATED TO OBLIGATIONS FOUND IN THIS AGREEMENT EXCEED $1.00 (ONE DOLLAR) USD.
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.