WHEREAS, Live365 provides subscription based Internet broadcasting tools and services for the programming, distribution and monetization of Broadcaster’s Internet-based audio streams including but not limited to content management; playlist scheduling; hosting and bandwidth; audio players for web, mobile apps and devices; impression management; audience, performance and impression tracking and reports; and statistical tools (collectively, the “Services”) according to the selected Broadcaster Package (the “Package”) on your behalf (“Broadcaster”). Live365 reserves the right to modify the Services and the Packages at any time.
WHEREAS, Live365 also provides, on a limited basis, certain proprietary technology, including software, processes, algorithms, user interfaces, designs, application programming interfaces (“APIs”) and other tangible or intangible technical material or information (collectively, inclusive of all future modifications to or derivations of the same, the “Live365 Technology”) to its Broadcaster customers in order to facilitate such customers’ use of the Services;
WHEREAS, Live365 has secured certain third party rights (“Covered Royalties”) for the transmission of Broadcaster’s Content;
WHEREAS, Broadcaster desires to prepare and transmit Broadcaster’s Content and to otherwise use the Services and the Live365 Technology in accordance with the terms and conditions set forth herein;
WHEREAS Broadcaster desires to provide access to Broadcaster’s Content through any and all end-user interfaces now or hereafter known and devices capable of receiving streaming transmissions from Live365 servers, including, without limitation, transmissions via the Internet and/or via mobile/wireless technologies; and
WHEREAS, Broadcaster has obtained any and all required third-party rights and licenses authorizing the transmission, use or other exploitation of Broadcaster’s Content (and to make any and all payments associated with obtaining those rights and licenses), in connection with the Services.
NOW THEREFORE, in consideration of the foregoing recitals and the mutual promises and agreements set forth in this Agreement, the parties hereto agree as follows:
- Services. Live365 shall provide the Services for Broadcaster’s transmission of Broadcaster’s Content, subject to the terms and conditions contained herein (including, without limitation, according to the applicable Broadcasting Package (“Package”) contained in Schedule B which Broadcaster selected upon signup and made a part hereof by this reference). “Broadcaster’s Content” means any and all uploaded program elements, whether audio (including sound recordings), text, photographs, pictures, graphic, live, looped or archived recordings, artwork, comments, and any other programming, content, data or information transmitted by Broadcaster through the Services (including, without limitation, Broadcaster’s individual playlists). Live365 reserves the right to modify the Services at any time.
- Broadcaster License Grant. Broadcaster grants Live365 the royalty-free, non-exclusive, perpetual right and license, throughout the world, to use, exploit, transmit, reproduce, perform publicly, display publicly, perform digitally, distribute and syndicate, by any means and any medium now known or hereafter devised, Broadcaster’s Content, in whole or in part, for any and all purposes (including, without limitation, in connection with the exploitation, marketing, advertisement or promotion of Live365 and/or the Services), to the full 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 website, applications or network operators and their end users, to access Broadcaster’s Content via any third party website or application, or by any other means, medium, method, device or process now or hereafter known.
- Third-Party Licensing and Royalties. Live365 will secure selected sound recording and musical work rights in connection with Live365’s transmission of Broadcaster’s Content in the USA, United Kingdom and Canada through Live365’s website and mobile players (“Covered Royalties”). The Covered Royalties are defined in Live365’s agreements with SoundExchange, PPL and Re:Sound the entity responsible for collecting and distributing royalties for the digital performance of sound recordings; the American Society of Composers, Authors, and Publishers (“ASCAP”); Broadcast Music, Inc. (“BMI”); and the Society of European Stage Authors and Composers (“SESAC”); PRS for Music, and the Society of Composers, Authors and Music Publishers of Canada (“SOCAN”); collectively, the “Performing Rights Organizations” for musical works. Live365’s coverage is provided through finalized agreements, interim agreements, and consent decrees with the respective collection societies. Broadcaster will be solely responsible for obtaining any and all additional required licenses for the worldwide distribution of Broadcasters Content including but not limited to sound recording and musical works rights. Broadcaster will also be responsible for any and all royalties or other payments that may be required in connection with these and any other third-party licenses (including, without limitation, any and all royalties or other payments that may be due to the foreign performing rights organizations).
- Trademark License. Live365 grants Broadcaster a non-exclusive, non-sublicensable, non- transferable, royalty-free, worldwide license to use and display solely those trademarks, service marks and/or logos that are listed at the URL https://live365.com/marks (the “Live365 Marks”) for the sole purpose of advertising and promoting Broadcaster’s Content that is transmitted via the Services. Broadcaster grants Live365 a non-exclusive, royalty-free, worldwide license to use any trade name, trademark, service mark, logo or other name or mark that is owned or licensed by Broadcaster (including, if applicable, Broadcaster’s radio call signs) (the “Broadcaster Marks”) in or in connection with the marketing, advertisement or promotion of Live365 or the Services, by any means and in any medium now known or hereafter devised, whether by Live365 or by any third party designated by Live365 (including, without limitation, in any directory listing of Live365’s broadcasters). Neither party shall take any action that would impair, denigrate, convey ownership in, tarnish or damage the other party’s rights with respect to the Live365 Marks or the Broadcaster Marks, as applicable, or the proprietary products or services of the other party. All use of the Live365 Marks shall be in accordance with Live365’s then-current trademark usage guidelines.
- Live365 Technology License. Live365 grants Broadcaster a non-exclusive, non-sublicensable, and non-transferable license to use the Live365 Technology for the sole purpose of enabling Broadcaster to use the Services. Broadcaster agrees that all ownership rights in the Live365 Technology, including all intellectual property rights, remain owned by Live365 and/or its licensors and agrees not to: (i) modify, adapt, alter, translate or create derivative works from the Live365 Technology; (ii) decompile, reverse engineer, disassemble, tamper or otherwise reduce the Live365 Technology to human readable form nor permit any third party to do so; and (iii) sublicense, lease, sell, rent, loan, distribute copies of or otherwise transfer the Live365 Technology to any third party. Broadcaster undertakes to use its best efforts to protect and keep confidential the Live365 Technology.
- Term; Termination. The term of this Agreement shall commence on the date Broadcaster’s acceptance of these Terms of Service and, subject to the parties’ rights of termination below, shall continue initially for a period of one (1) month (the “Initial Term”); provided, however, that (a) thereafter, the Term shall continue for successive one (1) month periods (each a “Renewal Period”) unless either party gives written notice (which shall be deemed effective upon receipt), at least thirty (30) days prior to the end of the Initial Term or any Renewal Period, as applicable, that the Agreement shall be terminated, and (b) either party may terminate this Agreement at any time by written notice to the other party (which shall be deemed effective upon receipt) if the other party materially breaches any of its agreements, covenants, warranties, representations, indemnities or obligations under this Agreement, and (c) notwithstanding the above, either Party may terminate this Agreement at any time by written notice to the other party (which shall be deemed effective upon receipt) during “Free Trial” and/or any “Specials”. Additional free trial and/or specials terms and conditions may appear on Live365 Website. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. From time to time herein, the Initial Term and any Renewal Period shall be referred to collectively as the “Term.” On termination or expiry of this Agreement for any reason, Live365 may cease transmission of Broadcaster’s Content and shall have the right to delete any and all of Broadcaster’s Content, data and other materials on its servers. Upon termination of this agreement as specified herein, except as otherwise set forth in this Agreement, Live365 shall have no obligation whatsoever to repay any amounts (including payments in advance) received from Broadcaster in respect of Services provided hereunder, and Broadcaster shall have no further obligation to make payments to Live365.
- Fees and Payment. Broadcaster shall pay Live365: (a) the applicable Setup Fee and initial Monthly Fees (as set forth in the selected Package when Broadcaster signed up); and (b) the applicable recurring Monthly Fees (as defined in the Package), as set forth below. From time to time herein, Setup Fees and Monthly Fees are referred to collectively as “Fees.” Live365 reserves the right to increase the Monthly Fees on the provision of thirty (30) days’ written notice to Broadcaster. The Service is provided whether Broadcaster utilizes Services or not. Non-utilization of the service does not affect the Fees. Live365 shall charge Broadcaster (via credit card, debit card or PayPal, as applicable) charges for the Monthly Fees as they are due, in which case Broadcaster acknowledges and agrees that: (i) Broadcaster will have sufficient funds, or sufficient credit, available in the applicable account to fully pay all Monthly Fees when due during the Term; (ii) Live365 is not responsible for Broadcaster’s use of Broadcaster’s credit card, debit card or PayPal account; and (iii) Broadcaster must resolve any disputes concerning Broadcaster’s credit card, debit card or PayPal account directly with PayPal or the applicable financial institution. In the event that Monthly Fees will not automatically be charged to Broadcaster’s credit card, debit card or PayPal account, Broadcaster shall pay Live365 each applicable Monthly Fee (after the initial Monthly Fee) by check within thirty (30) days of the date of the applicable billing statement from Live365. Broadcaster is responsible for payment of all taxes, duties or levies imposed in relation to the payment of any Fees, other than Live365’s income taxes. If the Fees due to Live365 are not paid within ten (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 may, at its election, terminate this Agreement. Broadcaster must provide notice of billing discrepancies within thirty (30) days from the date of the applicable billing statement; 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. Any extensions on payment due dates are at the sole discretion of Live365.
- Automatic Upgrades and Overages. Live365 packages come with an allotted amount of monthly TLH (total listening hours) for listening in the United States, United Kingdom and Canada. If a Broadcaster goes over their current package’s monthly TLH then they will be automatically upgraded to the next package on the following billing date. If a Broadcaster is on the highest tier of package then they will be automatically billed an overage fee of $0.05 per listening hour over that packages allotment of monthly hours on their next billing period.
- Refund Policy. No refunds will be given on Fees for the Service. If refunds are given to the Broadcaster it will be at the sole discretion of Live365.
- Advertising Insertion and Revenue Share. Broadcaster hereby grants to Live365, as part of the Services and in Live365’s sole discretion, the exclusive right to insert advertisements and network identifications into Broadcaster’s Content transmitted through Live365 (“Advertising Insertion Rights”). In full and complete consideration of Broadcaster’s grant of Advertising Insertion Rights, Broadcaster shall be entitled to compensation according to the terms set forth in the Advertising Revenue Share Program, Schedule A attached hereto, which is incorporated herein by this reference.
- Assumption of Liability. Without limiting the generality of Sections 3.6.10 and 15, all broadcasting, transmission or other exploitation of any of Broadcaster’s Content via the Services is at Broadcaster’s sole risk, and Broadcaster assumes full responsibility (financial or otherwise) for any and all claims or suits that may be brought alleging any infringement of any third-party right (including, without limitation, any intellectual-property right) arising from such broadcasting, transmission or other exploitation of Broadcaster’s Content.
- Limitation of Liability. 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 BROADCASTER DURING THE TERM OF THIS AGREEMENT.
- Press releases. Live365 shall have the right, in its sole discretion, to issue any press release or make any other public announcement or statement relating to any terms or conditions of this Agreement or any fact or surrounding circumstance relating to Live365’s transmission of Broadcaster’s Content. Notwithstanding anything to the contrary contained herein, Broadcaster shall not have the right to issue any press release or make any other public announcement or statement relating to any terms or conditions of this Agreement, or any fact or surrounding circumstance relating to Live365’s transmission of Broadcaster’s Content, without Live365’s prior written consent.
- Disclaimer. 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.
- Indemnity. 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.
- Discontinuance. Live365 reserves the right to cease, discontinue, suspend or delete any transmissions of Broadcaster’s Content if, in Live365’s sole discretion and without notice or liability to Broadcaster, Broadcaster’s Content is violated or acted inconsistently with any provision of these Agreement or any applicable law, rule or regulation, or that Broadcaster has engaged in conduct that Live365 reasonably determines to be inappropriate or unacceptable. Live365 may in its sole discretion, and at any time, discontinue providing Services, or any part thereof, on notice to Broadcaster.
- Assignment. This Agreement and any licenses and rights herein granted are personal to Broadcaster and shall not be assigned, transferred (by merger, operation of law or in any other manner), sublicensed or encumbered by Broadcaster without Live365’s prior written consent. Any purported transfer, assignment or delegation in violation of the foregoing will be null and void and of no force or effect. Live365 may assign, directly or indirectly, all or part of its rights or obligations under this Agreement without notice to Broadcaster or obtaining prior consent from Broadcaster.
- Notices (Electronic Communications). Any communication in connection with this Agreement shall be in writing and sent by fax or prepaid post (unless the address is changed by a notice), To Live365: at the address provided above, Attn: General Counsel. To Broadcaster: at the address provided by the Broadcaster. By using the Services, Broadcaster consents to receiving certain electronic communication from Live365. Broadcaster hereby agrees that any notices, agreements, disclosures, or other communications that Live365 sent to Broadcaster electronically will satisfy any legal communication requirements, including that such communications be in writing.
- Designated Agent. For Purposes of Section 512 Of The Digital Millennium Copyright Act, Live365’s Designated Agent contact information is: Live365 1340 Monticello Avenue Hermitage, PA 16148 firstname.lastname@example.org
- General. These Terms of Service, last updated October 9, 2020, constitute the entire agreement between the parties and supersedes all prior and contemporaneous communications. If a court of competent jurisdiction finds any provision of this Agreement to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to implement the intent of the parties, and the remainder of the Agreement shall continue in full force and effect. No waiver of any breach shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provision, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. No employer-employee relationship, partnership or joint venture is created hereunder. The parties each agree to take all actions and execute all documents as may be necessary or desirable to carry out or implement and give full effect to the provisions and intent hereof. This Agreement and all matters arising under it shall be governed by the applicable laws of the USA, including U.S. intellectual property laws, and the laws of Pennsylvania applicable to contracts entered into and wholly to be performed therein, without regard to choice of law rules. The parties consent to the exclusive jurisdiction of and bring any actions, suits or proceedings in the Pennsylvania state courts located in Mercer County or the federal courts located in the Middle District of Pennsylvania.