Feed Media Inc. Standard Terms and Conditions
These Standard Terms and Conditions (this “Agreement”) are incorporated by reference into and made a part of the Feed Media Inc. Order Form (the “Order Form”) entered into by and between the Client named on the Order Form (“Client”) and Feed Media Inc., a Delaware corporation with offices at 845 Market Street #450 San Francisco, CA 94133 (“Feed.FM”), as of the “Effective Date” identified in the signature block in the Order Form. This Agreement sets forth the terms and conditions pursuant to which Feed.FM will provide the Services and API (both, as defined below) to Client and establishes a binding legal contract between Client and Feed.FM.
1.1 “API” means the application programming interface as documented at http://business.feed.fm/docs/welcome and any supporting documentation provided by Feed.FM.
1.2 “API Content” means all Content obtained by Client via the API for use in connection with the Services.
1.3 “Content” means musical works, sound recordings and Metadata associated therewith.
1.4 “Intellectual Property Rights” means any patent rights, copyrights, trade secrets, trademarks, service marks, rights in know-how and any other similar rights recognized under any laws or international conventions and in any country or jurisdiction in the world, and all present and future registrations, applications, disclosures, renewals, extensions, continuations or reissues of the foregoing.
1.5 “Metadata” means the metadata identifying the featured artist name, album title, sound recording title, copyright, track number, and such other information as included in association with a sound recording or musical work by the copyright owner(s) or distributor(s) thereof.
1.6 “PRO” means a performing rights organization (by way of example, ASCAP, BMI, GMR or SESAC) (“PRO”).
1.7 “Services” means those services, including, but not limited to, all services specified under Section 3 of this Agreement or a Statement of Work (“SOW”), if any, performed by Feed.FM pursuant to this Agreement.
1.8 “Site” means the website(s) or downloadable application(s), or both, set forth in the SOW, which are owned or controlled by or on behalf of Client and made accessible via the World Wide Web, to which the Services are applied.
1.9 “Technology” means the materials, software, hardware, information, know-how, and technology owned by or licensed to Feed.FM and used to provide the Services.
1.10 “Usage Data” means any data collected by Feed.FM regarding usage of the Services, including, among other data, number of plays of a sound recording, skipped sound recordings, liked sound recordings, unique sound recordings played, session times, location of user access, and return visits.
1.11 “Play, Plays and/or Play Starts” means the transmission of all or any portion of a sound recording to an end user.
3.1 Standard Services. Feed.FM will make available to Client all related Technology to enable the Client to include a software radio player (the “Player”) for use on Client’s Site through which transmissions of an Internet radio station consisting of API Content can be made to the public on or through a Site. In Feed.FM’s sole determination, the Player may include use of Feed.FM Marks (as defined below) to identify Feed.FM as the transmitting entity for API Content (e.g., through the use of a notice such as “Powered by Feed.FM”), and Client shall not interfere with or otherwise block or obscure the display of such notice.
3.2 Professional Services. In the event Client desires customization of the Player or development of features or functionality not currently offered by Feed.FM, Client may order professional services from Feed.FM through use of project-specific Statements of Work (each an “SOW”). If and when Client desires to obtain such professional services, Client shall communicate to Feed.FM the type and extent of the services desired and Feed.FM shall develop and provide to Client an SOW describing the desired services for Client’s review and approval. Feed.FM shall have no obligation to provide services to Client, and Client shall have no payment obligations for such services, unless and until an SOW specifying the scope of services to be provided and the costs thereof has been duly executed by authorized representatives of each party. Such SOWs, if any, shall be incorporated by reference into and made a part of this Agreement upon execution by authorized representatives of each party. In the event of any conflict between the terms and conditions of an SOW and the terms and conditions of this Agreement, the terms and conditions of the SOW shall govern with respect to the Services provided thereunder. The parties may, by mutual agreement, make changes (“Changes”) to the scope, schedule, fees, term or other substantive aspects of the Services agreed to in any SOW. The party requesting a Change shall prepare a written “Change Order,” specifying in adequate detail the requested Change(s), and shall submit it to the other party for review and, if accepted, approval thereof. In no event shall any Change be effective or acted upon in any way or implemented until a Change Order defining such Change has been approved in writing by the duly authorized representatives of both parties.
3.3 Premium Services. Subject to payment of Feed.FM’s then-current applicable fees, Client shall have access to certain mutually agreed upon premium services identified on the Order Form. Premium services may include, without limitation, additional functionality, marketing tools, e-commerce support, advertising sales, special promotions, and premium analytics or reporting. Nothing herein shall obligate Feed.FM to provide any Premium Services, some or all of which may be discontinued by Feed.FM at any time; provided, however, that in the event any premium services are discontinued after Client has paid a fee for a fixed term for such premium services, Feed.FM shall reimburse Client for the pro rata portion of the fixed term for which the premium services have been discontinued.
3.4 Services and API Availability; Support Services. Feed.FM shall use commercially reasonable efforts to ensure the Services and API are available at all times, other than during scheduled maintenance. Client may email Feed.FM at email@example.com to report concerns with the Player or API. Feed.FM shall use commercially reasonable efforts to resolve any concerns reported via such support contact. Notwithstanding the preceding sentences of this Section 3.4 and subject to Section 6.3, Client understands that the Services are provided by Feed.FM using networks and services provided or managed by third parties and Feed.FM makes no representations and warranties that the Services will be available on an uninterrupted basis.
3.5 Geofiltering. Client acknowledges and agrees that Feed.FM may use geofiltering and other technical measures to limit accessibility to API Content based upon a user’s geographic location as Feed.FM may determine in its sole discretion in order to comply with licensing requirements and applicable laws.
4.1 Initial Fee for Standard Services. Client shall pay to Feed.FM the Initial Fee, if any, stated on the SOW within 10 days of the Effective Date. Feed.FM shall have the right to delay commencement of the Services unless and until such Initial Fee is received.
4.2 Monthly Fee for Standard Services. Unless otherwise agreed in writing by the parties, Client shall pay the monthly fees (“Monthly Fees”) that correspond to the amount of API Content to be streamed on a Site in any given month (“Subscription Tier”) as selected by the Client from the options set forth in the SOW. The Monthly Fees shall be payable in advance at the beginning of each calendar month.
4.3 Expenses; Premium Services. Unless otherwise agreed in writing by the parties, Client will pay (i) the fees for any Premium Services; and (ii) all other expenses and fees agreed to by the parties either on the SOW or otherwise in writing. Payment of expenses and for premium services will be as set forth in the SOW pursuant to which such expenses and premium services apply. If payment terms are not specified in an SOW, then payment will be due within 30 days of receipt of an invoice from Feed.FM for such expenses and premium services.
4.4 Professional Services. Client will pay to Feed.FM the amounts set forth in any applicable SOW for all professional services provided under such SOW and this Agreement. The timing for payment for professional services will be as set forth in the applicable SOW. If payment terms are not specified in an SOW for professional services, then payment will be due within 30 days of receipt of an invoice from Feed.FM for such expenses and professional services.
4.5 Payment Terms. Upon registering for the Services, Client will pay Feed.FM in accordance with the amounts set forth in the SOW. Each such payment is nonrefundable. All fees are quoted in, and all payments must be made in, U.S. dollars. Late payments hereunder will accrue interest at a rate of 1.5% per month, or the highest rate allowed by applicable law, whichever is lower, and may result in suspension or termination of the Services and related API license as set forth below. If any amount under this Agreement is 30 or more days overdue, Feed.FM may, upon notice, without limiting Feed.FM’s other rights or remedies, accelerate Client’s unpaid fee obligations so that all such obligations become immediately due and payable, and suspend the Services to Client until all amounts are paid in full; provided, however, that if any charge to be made to client’s credit card is rejected by the issuer of such credit card, Feed.FM may terminate Services immediately. If Client fails to cure such late payment within 10 days of receipt of notice of late payment, Feed.FM may terminate this Agreement, in addition to any other remedies that Feed.FM may have at law or in equity.
4.6 Taxes. Each party shall be responsible for payment of any and all taxes and other charges levied against such party by any applicable governmental entity as a result of this Agreement or the transactions contemplated hereunder; provided, however, that Client acknowledges and agrees that the fees quoted by Feed.FM are exclusive of any sales, use or other similar taxes that Feed.FM may be obligated to charge under law, and which taxes shall be the responsibility of Client.
5. Ownership and Licenses
5.1 Feed.FM Ownership. As between the parties, Feed.FM owns, and will continue to own, all right, title, and interest, including all Intellectual Property Rights, in and to: (a) its pre-existing software, Technology, Player, and API; (b) any trademarks, service marks and related branding, including registrations (if any) thereof, relating to the Services (including, specifically, the Feed.FM name that the parties intend to feature on a Site), the Player or the API; (c) all Feed.FM trade secrets related to any aggregation, collection or other obtainment of Usage Data utilized in the provision of the Services or operation of the API; and (d) all Technology developed by Feed.FM in connection with the performance of this Agreement, including, without limitation, any software and other technology developed for use in connection with the operation of the Player or API (collectively, the “Feed.FM Rights”), and Client hereby irrevocably assigns and agrees to assign any rights Client may have in any of the foregoing, and agrees to execute all documents necessary to comply with the provisions of this Section 5.1. Nothing herein will be construed to obligate Client to contribute to the development of any Technology to be used in connection with the Player or the API. As between the parties, Feed.FM is solely responsible for the prosecution, enforcement, and defense of Feed.FM Rights.
5.2 Client Ownership. As between the parties, Client owns and continues to own all right, title, and interest, including all Intellectual Property Rights, in and to: (a) Client’s pre-existing software and technology (if any); (b) the Client’s logo, and all other trademarks, service marks and related branding, including registrations (if any) owned by Client and featured on a Site (but not any trademark, service mark and related branding, including registrations (if any) thereof relating to the Services (including, specifically, the Feed.FM name, which the parties intend to feature on a Site), the Player or the API); and (c) all software and technology developed by Client to permit the integration of the Player or API into Client’s own software and technology (excluding all Feed.FM Rights) (collectively, “Client Software”); (clauses (a) through (c) of this Section 5.2 are collectively, the “Client Rights”). As between the parties, Client is solely responsible for the prosecution, enforcement, and defense of the Client Rights. For the avoidance of doubt, Client owns all right, title, and interest, including all Intellectual Property Rights, in any new client software and technology that is independent of the integration of the Player or API into Client’s own software and technology (“Excluded Client IP”).
5.3 Usage Data. As between the parties, Feed.FM owns and shall continue to own, all right, title, and interest in and to all Usage Data.
5.4 Client Licenses. Client hereby grants to Feed.FM, and its agents, a worldwide, non-exclusive, fully paid-up, royalty-free license during the Term of this Agreement to reproduce, distribute, publicly perform, communicate to the public, publicly display, and otherwise use and exploit (collectively, “Use”) Client Rights for the sole purpose of Feed.FM’s performance of the Services or to otherwise exercise Feed.FM’s rights and obligations under this Agreement. For the avoidance of doubt, Client will be solely responsible for securing licenses from any third parties owning rights in or to any Client Rights, including on a through-to-the-audience basis, to permit Feed.FM to Use Client Rights as contemplated in this Agreement. Client hereby grants Feed.FM a worldwide, non-exclusive, fully paid-up, royalty-free, perpetual, irrevocable, assignable, and sublicensable license to incorporate Client Software (but not Excluded Client IP) in any Technology, provided such Client Software and the Technology in which it is incorporated is used to publicly perform by means of a digital audio transmission or communicate to the public API Content or Client Rights.
5.5 Feed.FM License.
(a) Subject to Client’s acceptance and compliance with the terms and conditions of this Agreement, Client is hereby granted, during the Term (as defined below) a limited, nonexclusive, nonassignable (except as authorized herein), right to access through the Feed.FM website, the Player and to use the Services solely for the purpose of integrating the Player into a Site to display and transmit the API Content on a Site solely as delivered by Feed.FM without alteration in any way whatsoever without Feed.FM’s prior written consent.
(b) Subject to the terms and conditions of this Agreement and during the Term, as defined below, Client is hereby granted a limited, nonexclusive, non-sublicensable, nonassignable (except as authorized herein), freely revocable license to access and use the Technology and API solely for the purposes of accessing API Content for Uses as authorized in this Agreement.
(c) Subject to Client’s acceptance and compliance with the terms and conditions of this Agreement, Client is hereby granted, during the Term (as defined below) a limited, nonexclusive, nonassignable (except as authorized herein), royalty free right and license to display and use the logos, trade names, trademarks, and service marks of Feed.FM (“Feed.FM Marks”) for the sole purpose of carrying out its obligations under this Agreement, subject to the following conditions: (i) it shall keep intact any proprietary notices of Feed.FM; (ii) it shall comply with Feed.FM’s trademark use guidelines; (iii) it acknowledges that all goodwill generated through its use of the Feed.FM Marks will inure to the benefit of Feed.FM; (iv) it hereby assigns and agrees to assign to Feed.FM any and all goodwill generated through its use of the Feed.FM Marks, without any payment or other consideration to it, and further agrees to take all actions necessary to effect such assignment; and (v) upon termination of this Agreement, it shall cease using the Feed.FM Marks.
(d) Reservation. All rights not expressly granted to Client herein are reserved by Feed.FM and any third parties owning or controlling rights in API Content (such as sound recording copyright owners and musical work copyright owners and each of their authorized or designated agents). Feed.FM may, at any time, change the specifications or restrict or limit access to the API in Feed.FM’s sole discretion, without any liability to Client (including restricting or limiting the number, frequency and type of calls made by Client to the API). Client’s right to access and use the API is a privilege, which may be revoked by Feed.FM at any time, with or without notice. Client acknowledges and agrees that Feed.FM may use any technological means to enforce the use rights and licenses granted herein. Notwithstanding anything to the contrary, Client hereby grants Feed.FM the right to crawl, test or otherwise monitor a Site for the purpose of verifying Client’s compliance with the use rights and licenses granted hereunder, and that Client will not block, attempt to block or otherwise interfere with such crawling or monitoring.
5.6 Integrity of Content. Client is not permitted to record, modify, edit, reproduce, transmit, retransmit, remix, alter, repurpose, or otherwise perform any API Content included as part of the Services, whether through the Player or otherwise, in whole or in part, without the prior written consent of Feed.FM, which consent may be withheld for any reason or for no reason. The unauthorized reproduction or distribution of API Content is expressly prohibited and is a violation of law. Client will also not insert into any API Content delivered via a Player any content (e.g., audio advertisements) not authorized in writing by Feed.FM. Client acknowledges that the Services and the sequence in which API Content is performed as part of the Services is proprietary information of Feed.FM (and is determined at Feed.FM’s discretion) and will not be recorded, codified in writing or any fixed media or medium, or disclosed to any third party other than through a third party’s ability to hear such API Content by receiving authorized transmissions through a Player. Client will protect all copyright owners’ rights in the API Content and such copyright holders reserve all rights in the API Content that are not granted to Client under this Agreement.
5.7 Restrictions. Client agrees that through its use of the Services and the API, Client will not, directly or indirectly, violate any applicable laws, the rights of others, or the operational and security mechanisms of the Services and API. Further, Client agrees that:
it will not:
(a) modify, adapt, translate, decompile, disassemble, reverse engineer, reverse assemble, analyze or otherwise examine, prepare derivative works of, modify, or attempt to derive source code from the Services or API, or attempt to do any of the foregoing;
(b) obtain access to the Services or API without all necessary authorization;
(c) include any viruses, worms, Trojan horses or any other harmful code that could, in Feed.FM’s sole discretion, affect the Services or API;
(d) copy, distribute, reproduce, sell, resell, lend, lease, rent, use, or allow access to the Services, API or API Content except as explicitly permitted under this Agreement, or permit any third party, including Site Users, to do any of the foregoing;
(e) aggregate the API Content (including Metadata, as defined below) to create databases, or any other compilations of API Content, or use the API Content to populate any other sites, applications or services;
(f) interfere or attempt to interfere in any manner with the proper functioning of the Services or API;
(g) use the Services or API for any illegal or unauthorized purpose, including the unlawful distribution of API Content or the infringement, violation or misappropriation of any third party’s Intellectual Property Rights or other proprietary rights;
(h) cache or store any API Content, except for local caching of Metadata for up to 24 hours;
(i) remove, obscure, or alter any notice of patent, copyright, trademark or other proprietary right appearing in the Services, whether of Feed.FM or any other third party;
(j) access any undocumented feature of the API, or use any documented feature of the API other than for its intended purpose;
(k) impose or purport to impose any obligation on any person, or grant or purport to grant any right, power or authority to itself or any other person, that would be inconsistent with this Agreement, and Client agrees that any such obligation, right, power or authority purportedly imposed or granted shall be null and void;
(l) attempt to conceal its identity or a Site’s identity when requesting authorization to use the API;
(m) use the Services or API in a manner that adversely impacts the stability of Feed.FM’s servers or the Services or adversely impacts the behavior of other clients or applications using the API, in Feed.FM’s sole determination;
(n) use the API to develop an application to automate or assist with synchronizing API Content in timed relation with external media (such as slide shows, video, or games), or to provide background music to or integrate the API with any applications or websites, other than a Site;
(o) use the API in such a way that knowingly harms, misuses, or brings into disrepute the Services or Feed.FM’s (or any of its other customers’) brands, trademarks, logos or names;
(p) edit, reformat or otherwise interfere with or modify (or allow Site users to edit, reformat or otherwise interfere) or attempt to do any of the foregoing with any Content;
(q) reproduce, or allow Site users to reproduce, any API Content on any form of storage media, whether now known or hereafter created, unless expressly permitted by the API;
(r) distribute any application online through one or more website(s), including a Site, that is/are in any way similar to the Services or use the Feed.FM Marks, or words confusingly similar or describing Feed.FM’s products or services, as the registered URL for a Site, except as expressly approved in writing by Feed.FM;
(s) use an unreasonable amount of bandwidth, storage or processing power as determined by Feed.FM in its sole discretion, or use the API in a manner that exceeds any quota limitations;
(t) publish as part of an advance playlist or otherwise any of the sound recordings transmitted through a Player for public performance as part of the Services through a Site; and
(u) use the API or the Services to publicly perform or publicly display any Content in any establishment, venue or location open to the public (e.g., bars, restaurants, retail stores, offices, gyms, hotels, hospitals, etc.), such uses being expressly prohibited under this Agreement;
and a Site Will Not:
(v) do any of the following: (i) facilitate and/or promote illegal activity, including, without limitation, any activity that is fraudulent, such as engaging in phishing or otherwise obtaining financial or other personal information in a misleading manner or for misleading purposes; (ii) depict sexually explicit images; (iii) promote violence and/or discrimination; (iv) incorporate any materials, or encourage or endorse Site users to post or upload any materials, that infringe or assist others to infringe on any Intellectual Property Right; (v) engage in the endorsement of political positions, political candidates or religious causes or use the Services to display or imply any such endorsement by music artists or Content providers or the copyright owners thereof; (vi) engage in the sale or advertisement of pornography, tobacco, firearms or personal hygiene products (but excluding soaps, shampoos, perfumes, lotions and toothpastes); (vii) engage in spamming or other advertising or marketing activities that violate any applicable laws, regulations or generally-accepted advertising industry guidelines; (viii) engage in any activity that is malicious or harmful to any person or entity, including an activity that may be libelous or defamatory, or discriminatory based on race, color, sex, gender identity, religion, nationality, ethnic or national origin, marital status, disability, sexual orientation, age or any other protected class pursuant to U.S. federal or any state laws; (ix) display or imply any kind of product endorsement by music artists or Content providers or the copyright owners thereof; (x) engage in or use the Services for prohibited business activities, including, but not limited to, resale of the Services and the use of the Services in association with contests or promotions; or (y) permit Site users to reproduce to reproduce any API Content transmitted as part of the Service;
(w) facilitate the access, storage, distribution or other exploitation of Content, which includes making the Content available for download to Site users and bundling or reselling streams via the Services;
(x) as determined by Feed.FM in its sole discretion, reasonably be capable of misleading a Site user into believing that: (i) he or she is interacting directly with the Services when interacting with a Site; or (ii) a Site was created by or is endorsed by or affiliated with Feed.FM;
(y) include user generated content of sound recordings, musical works or audiovisual works, unless a filtering mechanism approved by Feed.FM is implemented in accordance with requirements approved by Feed.FM; and
(z) focus on a specific musical artist or specific set of musical artists.
5.8 Rights Clearance for Content.
(a) Reproductions. Subject to Client’s representations and warranties in Section 6.2, Feed.FM will be responsible for clearing the rights to, and paying all royalties for, all sound recordings embodied in API Content that is reproduced solely for the purposes of facilitating digital audio transmissions of sound recordings in API Content via the Services on a Site. Client acknowledges that Feed.FM will not be securing mechanical licenses for any musical works embodied in sound recordings in API Content publicly performed on a noninteractive basis as part of the Services under the generally accepted industry position that mechanical licenses for the reproduction of musical works are not required when such musical works are embodied in sound recordings transmitted to the public as part of a noninteractive service.
(b) Public Performances and Communications to the Public. Feed.FM will be responsible for clearing the rights to, and paying all royalties for communications to the public and/or public performances of the sound recordings included in API Content solely as part of the Services made available through a Site, but not any other sites or as part of any offering other than the Services, and the musical works embodied in such sound recordings, including by entering into license agreements with PROs or copyright owners for such communication to the public and/or public performance.
6. Representations and Warranties; Limitation of Liability
6.1 Mutual Representations and Warranties. Each party represents and warrants to the other party that: (i) it has the full corporate right, power, and authority to enter into this Agreement; (ii) the person entering into this Agreement on behalf of the party is authorized to do so, including by clicking “I Accept” in the event the Agreement is made available for electronic acceptance; (iii) the execution and performance of the obligations and duties of this Agreement by such party, do not and will not violate any agreement to which such party is a party or by which it is otherwise bound; and (iv) when executed and delivered (whether in hard copy or electronically) by such party, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
6.2 Additional Client Representations and Warranties. Client further represents and warrants to Feed.FM that:
(a) It will comply at all times with this Agreement and all other terms governing Client’s use of the Services and API;
(b) it has all necessary rights in the Client Rights to grant the licenses set forth herein and that neither the Client Rights nor Feed.FM’s use thereof, infringes, or will infringe, any Intellectual Property Rights or other proprietary rights of a third party, and that no fees or payments will be payable by Feed.FM to any third party for any Client Rights Used by Feed.FM pursuant to this Agreement; and
(c) a Site will comply with all applicable local, state, national and international laws and regulations, including without limitation, laws related to Intellectual Property Rights and other laws protecting proprietary rights, and all applicable export control laws and regulations and country-specific economic sanctions implemented by the United States Office of Foreign Assets Control.
6.3 Disclaimer. EXCEPT AS SET FORTH ABOVE, FEED.FM MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY REGARDING OR RELATING TO THE SERVICES, API, API CONTENT OR ANY OTHER MATERIALS OR DELIVERABLES FURNISHED OR PROVIDED TO CLIENT UNDER THIS AGREEMENT. THE SERVICES AND API ARE PROVIDED ON AN “AS-IS,” “AS AVAILABLE,” “WITH ALL FAULTS” BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, FEED.FM AND ITS AFFILIATES, PARTNERS AND SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. NO ADVICE OR INFORMATION, EITHER ORAL OR WRITTEN, OBTAINED BY CLIENT FROM FEED.FM, OR ANYONE ACTING ON BEHALF OF FEED.FM, OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. FEED.FM DOES NOT WARRANT OR GUARANTEE THAT THE SERVICES OR API WILL OPERATE UNINTERRUPTED OR FREE FROM ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DOES NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED. CLIENT UNDERSTANDS AND AGREES THAT IT ACCESSES, DOWNLOADS OR USES THE SERVICES AND API AT ITS DISCRETION AND RISK, AND THAT IT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS PROPERTY (INCLUDING ANY COMPUTER SYSTEMS USED IN CONJUNCTION WITH THE SERVICES) OR LOSS OF DATA THAT RESULTS FROM ACCESSING, DOWNLOADING OR USING THE SERVICES OR API.
6.4 Limitation of Liability. EXCEPT WITH RESPECT TO EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9 OR A BREACH OF SECTION 7, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY REASON WHATSOEVER AND FOR ANY CAUSES OF ACTION ARISING IN RELATION TO THIS AGREEMENT FOR (a) CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, INDIRECT OR PUNITIVE DAMAGES OR COSTS OF COVER, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (b) DAMAGES IN EXCESS OF ALL AMOUNTS PAID BY CLIENT TO FEED.FM DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CAUSE OF ACTION. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. The provisions of this Section 6.4 are applicable to the fullest extent permitted by law.
7. Confidentiality. Each party (a “Receiving Party”) agrees that the business, technical, and financial information it obtains from the other party (a “Disclosing Party”) are the confidential property of the Disclosing Party (“Proprietary Information”). Except as expressly allowed in this Agreement, a Receiving Party will hold in confidence and neither disclose nor use any Proprietary Information of a Disclosing Party except for the purposes of performing under or enforcing this Agreement. A Receiving Party’s confidentiality obligation shall not apply to information it can document (a) was publicly known and made generally available in the public domain prior to the time of disclosure; (b) becomes publicly known and made generally available after disclosure through no action or inaction of the Receiving Party; (c) is already in the possession of the Receiving Party without restriction on use or disclosure at the time of disclosure by the Disclosing Party as shown by the Receiving Party’s files and records immediately prior to the time of disclosure; (d) is obtained by the Receiving Party without restriction on use or disclosure from a third party without a breach of such third party’s obligations of confidentiality; or (e) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Proprietary Information, as shown by the Receiving Party’s files and records immediately prior to the time of disclosure. This Agreement shall be the Proprietary Information of Feed.FM.
8. Term and Termination
8.1 Term. This Agreement will take effect on the Effective Date and will remain in force thereafter during the Initial Term indicated on the Order Form (or for an initial period running from the Effective Date through the end of the month in which the one-year term anniversary of the Effective Date occurs if no term is specified on the Order Form) (the “Initial Term”) unless earlier terminated in accordance with this Agreement. At the expiration of the Initial Term, this Agreement shall automatically renew for additional one-year terms (each a “Renewal Term,” and, collectively with the Initial Term, the “Term”) unless and until either party provides written notice to the other party, not less than 30 days prior to the expiration of the then-current Term, that it does not desire to renew.
8.2 Termination by Feed.FM. Feed.FM may terminate this Agreement at any time upon written notice to Client if there is a material change in the reproduction, distribution, communication to the public or performance fees that Feed.FM is required to pay to any Third Party Rights Holders, either directly or through an agent or PRO, including, but not limited to, SoundExchange, Inc. or any successor entity thereto.
8.3 Termination for Cause. Either party may terminate this Agreement upon written notice to the other party if: (a) the other party is in material breach of any term, condition or provision of this Agreement, and such breach is not cured within 30 days after the non-breaching party gives written notice of such breach; or (b) the other party (i) terminates or suspends its business; (ii) becomes insolvent, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority; or (iii) becomes subject to any bankruptcy or insolvency proceeding under federal or state statutes that is not dismissed within 60 days of its inception. Notwithstanding the foregoing sentences of this Section 8.3, Feed.FM may terminate this Agreement immediately should any breach of this Agreement by Client or any action undertaken by Feed.FM in performance of its obligations under this Agreement subject Feed.FM to any Claim (as defined below) for copyright infringement.
8.4 Effect of Termination. Upon any termination or expiration of this Agreement, (a) all licenses granted under this Agreement shall cease and Client shall cease using and accessing the Player and API; (b) a Receiving Party shall return, or upon a Disclosing Party’s request, destroy, all Proprietary Information of the Disclosing Party then in such Receiving Party’s possession and control; and (c) Client shall pay to Feed within 30 days of termination all amounts due, including, without limitation, all amounts set forth in any applicable SOW for all professional services provided through the date of termination.
8.5 Survival of Terms. Notwithstanding any termination or expiration of this Agreement, all terms and conditions of this Agreement which by their terms or their nature should survive any such termination or expiration, including, without limitation, Sections 1, 4, 5.1, 5.2, 5.3, 6, 7, 8.4, 8.5, 9, 10 and 11 shall so survive.
9.1 Client. Client agrees to indemnify, defend, and hold harmless Feed.FM, its directors, officers, employees, and agents, and defend any action brought against same with respect to any third party claim, demand, cause of action, debt or liability (“Claim”), including reasonable attorneys' fees, to the extent based upon a claim (a) arising as a result of a Site, except to the extent Feed.FM is required to indemnify Client under Section 9.2; or (b) arising as a result of Client’s breach of any representation, warranty or covenant of Client made in this Agreement.
(a) Subject to Client’s compliance with the terms and conditions of this Agreement, Feed.FM agrees to indemnify, defend, and hold harmless Client, its directors, officers, employees, and agents, and defend any action brought against same with respect to any Claim, to the extent based upon a claim (i) by a copyright owner alleging that the digital audio transmission of API Content made through the Services on a Site infringes the Intellectual Property Rights of such copyright owner or (ii) that the Player or API infringes or violates the Intellectual Property Rights of third parties.
(b) In the event of an infringement Claim against Client with respect to the Player or API, or in the event Feed.FM believes such a Claim is likely, Feed.FM may, at its option (i) appropriately modify or substitute the Player or API licensed hereunder, so long as such modification or substitution does not materially alter the functionality of the Player or API; or (ii) obtain a license with respect to the applicable third party Intellectual Property Rights. In the event neither of the foregoing alternatives is commercially practicable, Feed.FM shall have the right to terminate this Agreement and Client’s licenses hereunder.
(c) Feed.FM shall have no obligation or liability for (i) use of the Player or API other than the then-current, unaltered version of the Player or API, unless the portion giving rise to the Claim is also in the then-current, unaltered version; (ii) use, operation or combination of the Player or API with non_Feed.FM programs, data, equipment, documentation or marks if such Claim would have been avoided but for such use, operation or combination; (iii) the Client’s or its agent's activities after Feed.FM has notified Client that it believes such activities may result in a Claim; (iv) compliance with the Client’s designs, specifications or instructions; or (v) modification of the Player or API if such Claim would have been avoided but for such modification.
(d) The obligations set forth in this Section 9.2 shall constitute Feed.FM’s entire liability and Client’s sole remedy for any breach of Sections 5.7(a) and 5.7(b) or any actual or alleged infringement claim.
9.3 Procedure. In case any Claim is at any time brought against a party or its affiliates (or any of their respective employees, officers, directors or representatives) (an “Indemnified Party”) and such Indemnified Party is entitled to indemnification pursuant to this Section 9, the party obligated to provide such indemnification (the “Indemnifying Party”) will defend such Claim, at the sole expense of the Indemnifying Party, using counsel selected by the Indemnifying Party but subject to the Indemnified Party’s reasonable approval. If the Indemnifying Party fails to take timely action to defend such a Claim after having received written notice from the Indemnified Party of such failure, the Indemnified Party may defend such a Claim at the Indemnifying Party’s expense. The Indemnifying Party will keep the Indemnified Party fully advised with respect to such Claims and the progress of any suits, and the Indemnified Party shall have the right to participate, at the Indemnified Party’s expense, in any suit instituted against it and to select attorneys to defend it, which attorneys will be independent of any attorneys chosen by the Indemnifying Party relating to such Claim or related Claim. The Indemnifying Party will not settle, compromise or otherwise enter into any agreement regarding the disposition of any Claim against the Indemnified Party without the prior written consent and approval of the Indemnified Party, unless such settlement involves only the payment of money by the Indemnifying Party.
10. Dispute Resolution
10.1 The following binding dispute resolution procedures shall be the exclusive means used by the parties to resolve all disputes and claims arising out of or relating to the Agreement (collectively, “Disputes”). Notwithstanding the foregoing, pending conclusion of the dispute resolution process herein prescribed, either party may seek and obtain an injunction or other appropriate relief from a court to preserve or protect its Proprietary Information or Intellectual Property Rights with respect to any matter.
10.2 The party seeking resolution of a Dispute, shall give the other party written notice describing the nature of the Dispute and the relief sought. Within 30 days following delivery of such Dispute notice, executives of each party will meet and attempt to resolve the Dispute. If the Dispute is not finally resolved within 30 days (or such other period of time as the parties may agree to in writing) following delivery of such Dispute notice, then the party seeking relief may then initiate arbitration.
10.3 Any arbitration action shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”). The parties agree that any arbitration action shall be heard and decided by one arbitrator (the “Arbitrator”) to be agreed upon by the parties. If the parties cannot agree upon an Arbitrator within 14 days of delivery or the demand for arbitration (“Demand”) (or such other time period as the parties may agree to in writing), the parties agree to the appointment of a single arbitrator pursuant to R-11(a) and (b) of the AAA Commercial Arbitration Rules or whatever AAA Commercial Arbitration Rules are then in effect for the appointment of a single arbitrator.
10.4 The Arbitrator shall be bound by the laws of the State of California and all rules of that jurisdiction relating to discovery and the admissibility of evidence, including, without limitation, all relevant privileges and the attorney work product doctrine. The Arbitrator shall have the power to grant equitable relief when appropriate and available under applicable law; however, the parties expressly agree that the Arbitrator shall be prohibited from awarding any costs, damages, or amounts prohibited pursuant to Section 6.4. The Arbitrator shall issue a written opinion containing findings of fact and conclusions of law within 30 days after the arbitration proceeding is concluded. The arbitration award shall be final, binding and non-appealable, and may be entered and enforced by any court of competent jurisdiction. If any provision of this Agreement is deemed unenforceable (in whole or in part) by the Arbitrator, the parties agree that the Arbitrator shall amend or delete such provision so as to effectuate the intent of such provision and of this Agreement to the maximum extent that it is enforceable.
10.5 The Prevailing Party to the arbitration shall be entitled to an award of its reasonable costs and attorneys’ fees from the non-prevailing party. The “Prevailing Party” is the party that is awarded judgment or other legal or equitable relief as a result of the arbitration or the party receiving or entitled to receive a payment of money or the party defeating a claim for receipt or payment of money from the other party in settlement of the Dispute. If both parties receive a judgment or other award of relief, the Arbitrator shall determine which party, if any, is the Prevailing Party, or shall determine an appropriate allocation of costs and attorneys’ fees between the parties, in each case taking into consideration the merits and amounts of the claims asserted by each party, the relative values of the judgments, or other forms of relief received by each party, the relative equities between the parties, and the parties’ respective contributions to the length and expense or arbitration or proceeding.
10.6 THE PARTIES HERETO AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN SUCH PARTY’S INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. FURTHER, CLIENT AGREES THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OF MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE, OR CLASS PROCEEDING AND THAT IF THIS SPECIFIC PROVISO IS FOUND TO BE UNENFORCEABLE, THEN THE ENTIRETY OF THIS MANDATORY ARBITRATION SECTION SHALL BE NULL AND VOID.
11.1 Assignment/Binding Agreement. Either party shall have the right to assign this Agreement upon written consent of the other party, such consent not to be unreasonably withheld, conditioned or delayed; provided, however, no such consent shall be necessary in the event of a reorganization, merger or acquisition of substantially all of a party’s stock, assets or business. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.
11.2 Independent Contractor. The parties hereto expressly understand and agree that each party is an independent contractor in the performance of each and every part of this Agreement. Nothing herein shall create an express or implied partnership, agency, joint venture, employment or other association between the parties. Each party shall be solely responsible for all of its respective employees and agents and its labor costs and expenses arising in connection therewith and for any and all claims, liabilities or damages that may arise on account of that party’s activities, or those of its employees or agents, in the performance of this Agreement. Except as may be expressly agreed in writing, neither party has the authority, right or ability to bind or commit the other party in any way and will not attempt to do so or imply that it may do so.
11.3 Notices. Any notice required or permitted under the terms of this Agreement or required by law must be in writing and must be: (a) delivered in person; (b) sent by first class registered mail, or air mail, as appropriate; or (c) sent by overnight air courier; in each case properly posted and fully prepaid to the appropriate address set forth in this Agreement or the Order Form. Notwithstanding the foregoing, any notices required to be given by Feed.FM may be sent to the Client email address set forth on the Order Form. Either party may change its address for notice by notice to the other party given in accordance with this Section 11.3. Notices will be considered to have been given at the time of actual delivery in person, three business days after deposit in the mail as set forth above, or one business day after delivery to an overnight air courier service.
11.4 Limitation on Claims. Except for the right of indemnification, no action arising out of any breach or claimed breach of this Agreement or transactions contemplated by this Agreement may be brought or raised by either party more than one year after the cause of action has accrued. For purposes of this Agreement, a cause of action will be deemed to have accrued when a party knew or reasonably should have known of the breach or claimed breach.
11.5 Force Majeure. Neither party will incur any liability to the other party on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without negligence of the parties. Such events, occurrences, or causes will include, without limitation, acts of God, strikes, lockouts, riots, acts of war or terrorism, earthquake, fire and explosions, but the inability to meet financial obligations is expressly excluded.
11.6 Waiver. Any waiver of the provisions of this Agreement or of a party’s rights or remedies under this Agreement must be in writing to be effective. Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed and will not be deemed to be a waiver of such party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such party’s right to take subsequent action. No exercise or enforcement by either party of any right or remedy under this Agreement will preclude the enforcement by such party of any other right or remedy under this Agreement or that such party is entitled by law to enforce.
11.7 Severability. If any term, condition, or provision in this Agreement is found to be invalid, unlawful or unenforceable to any extent, the parties shall endeavor in good faith to agree to such amendments that will preserve, as far as possible, the intentions expressed in this Agreement. If the parties fail to agree on such an amendment, such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.
11.8 Integration. This Agreement (including the Order Form and any Statements of Work and addenda hereto signed by both parties or accepted by Client through any electronic click to accept mechanism, which are hereby incorporated into and made a part of this Agreement) contains the entire agreement and understanding of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to said subject matter. This Agreement may not be amended except by a writing signed by authorized representatives of both parties.
11.9 Publicity. Any press releases, public announcements or similar publicity with respect to this Agreement or the business relationship between the parties created hereunder must be approved by both parties in writing in advance of issuance. Notwithstanding the foregoing, Feed.FM shall have the right to list Client on Feed.FM’s website and marketing materials as a client of Feed.FM and to use Client’s logo and a Site domain name in any such materials. Client hereby grants to Feed.FM a non-exclusive, royalty free, worldwide right and license to use Client’s trademarks to accomplish the foregoing.
11.10Governing Law. This Agreement will be interpreted and construed in accordance with the laws of the State of California and the United States of America, without regard to conflict of law principles. The parties hereby consent to the exclusive jurisdiction of the state and federal courts located in Santa Clara County, California for resolution of any disputes arising out of this Agreement.
11.11 Remedy. The parties acknowledge that the other party would have no adequate remedy at law to enforce Section 7. In the event of a breach by either party of such Section, the non-breaching party shall have the right to obtain injunc_tive or other similar relief, as well as any other relevant damages, without the requirement of posting bond or other similar measures.
11.12 Counsel. Each party has been represented by its own counsel in connection with the negotiation and preparation of this Agreement or had the opportunity to consult with its own counsel but chose not to do so, and, consequently, each party hereby waives the application of any rule of law that would otherwise be applicable in connection with the interpretation of this Agreement, including, but not limited to, any rule of law to the effect that any provision of this Agreement shall be interpreted or construed against the party whose counsel prepared this Agreement
11.13 Headings. The captions and headings in this Agreement are intended only for convenience, and will in no event be construed to define, limit or describe the scope or intent of this Agreement, or of any provision of this Agreement, nor in any way affect the interpretation of this Agreement.
11.14 Counterparts; Facsimile or PDF Signatures. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Any signed copy of this Agreement or of any other document or agreement referred to herein, or copy or counterpart thereof, delivered by facsimile transmission or by e-mail in portable document format (PDF), shall for all purposes be treated as if it were delivered containing an original manual signature of the person whose signature appears in the facsimile or e-mail, and shall be binding upon such party in the same manner as though an originally signed copy had been delivered.
Version Control #: 2019-07-23