Broadcasters Terms of Service Agreement
Revised: September 21, 2012
This Terms of Service Agreement (this "Agreement") is a legally binding agreement between you ("Broadcaster") on the one hand, and StreamTrack Media, Inc., a California corporation ("Service Provider") on the other hand, that governs any or all services obtained from Service Provider or Service Provider's licensors under this Agreement, including, but not limited to: (a) Internet radio station hosting and distribution using Jetcast® brand distribution technology ("Streaming Services"); (b) ReplaceAds™ brand advertising monetization solution ("Monetization"); (c) UniversalPlayer™ brand media player ("UniversalPlayer"); (d) RadioLoyalty™ brand loyalty solution (the "Program"); (e) search engine optimization ("SEO"); (f) automation services ("Automation"); (g) ad insertion solutions ("Ad Insertion"); (h) website creation and maintenance ("Websites"); (i) mobisite creation and maintenance ("Mobisites"); (j) inclusion in guides and devices ("Distribution"); (k) mobile marketing list creation, maintenance and monetization ("Mobile Marketing"); (l) email marketing list creation, maintenance and monetization ("Email Marketing"); (m) payment processing ("Payment Processing"), and related services (collectively the "Services"). By accessing or using any of the Services, you agree to all of the terms and conditions of this Agreement as amended by Service Provider from time to time. Some of our Services (e.g., applications, broadcasts, offers, or promotions) have additional terms and conditions ("Additional Terms"). Where Additional Terms apply to specific Services, we will make them available for you to read through your use of the specific Services. By accessing or using the Services, you agree to all of the terms and conditions of the Additional Terms. From time to time, we may change this Agreement or Additional Terms. If we change this Agreement or Additional Terms, we will inform you by posting the revised Agreement or Additional Terms on www.RadioLoyalty.com or within the Services. Those changes will go into effect on the Revision Date shown in the revised Agreement or Additional Terms. By continuing to access of use our Services, you agree to the revised Agreement or Additional Terms.
1. Service Fee & Payments.
As consideration for the Services, Broadcaster agrees to pay Service Provider the service fees ("Service Fees") identified in Exhibit A attached hereto and incorporated herein by this reference, according to the terms herein, and as described in Exhibit A. In those situations where Service Provider performs services for Broadcaster resulting in a payment to Broadcaster, Service Provider shall pay Broadcaster on a monthly basis. For Monetization, Service Provider shall pay Broadcaster 60 days after the close of the month in which the advertising ran. Service Provider shall be entitled to offset against any payments due to Broadcaster any costs to be paid by Broadcaster that are due and payable. All Service Fees shall be paid by Broadcaster in kind by exchanging the advertising inventory described in Exhibit A as payment for all Services. All inventory for services exchanged shall be settled on a daily basis in real time according to the schedule included on Exhibit A. All other domestic payments or debits shall be made by ACH. Broadcaster agrees to keep its ACH information accurate and current. All other international payments or debits shall be made by wire, check or Paypal. For payment to be issued, to a domestic Broadcaster, total earnings accrued must be greater than $25.00. For payment to be issued, to an international Broadcaster, total earnings accrued must be greater than $100.00.
Billing for services commences immediately upon the day that the Broadcaster's service commences; bills for partial periods are prorated. Invoiced amounts not paid by Broadcaster when due shall be subject to late fees equal to the lower of 1.5% per month or the maximum amount allowed by applicable law. In the event that Broadcaster has past due balances, and Service Provider finds it necessary to pursue collections, Broadcaster shall be responsible to pay Service Provider's collection costs including legal fees. Termination of this Agreement and/or payment of late fees shall not prejudice any other rights or remedies that may be available to Service Provider with respect to any nonpayment of applicable Service Fees. In the event that Broadcaster has any complaints about any amounts due, Broadcaster must notify Service Provider within fifteen (15) calendar days from the receipt of the disputed invoice. All fees are in United States dollars and exclude any applicable taxes. Broadcaster shall pay, indemnify and hold Service Provider and its successors and assigns harmless from all sales, use, value-added or other taxes of any nature arising from the Services or from this Agreement (other than taxes on Service Provider's net income), including penalties and interest, and all government permit or license fees assessed upon or with respect to any fees due under this Agreement (except to the extent Broadcaster provides Service Provider with a valid tax exemption certificate).
2. Services provided.
Service Provider will provide Broadcaster with the Services as specified in Exhibit A attached hereto and incorporated herein by this reference. If Broadcaster elects to utilize Jetcast® brand streaming Services, Broadcaster shall, at its cost, deliver one stream of each Station at the designated Data Transfer Rate to Service Provider at Service Provider's Los Angeles data center, or such other data center as Service Provider designates. Service Provider will also provide a single and unique Universal Resource Locator (URL) address for use by Broadcaster for each media property and stream rate contracted by the Broadcaster.
3. Initiation of Services.
Service Provider will supply, at no additional charge, up to two (2) hours of telephonic assistance at Broadcaster's request during the initial installation of the Services, provided such assistance is requested within thirty (30) days of the execution of this Agreement. On-site installation assistance and operator training is available at the daily consulting rate as agreed by the parties in writing, plus all out of pocket expenses.
4. Third-Party Software and Services.
From time to time, for the convenience of Broadcaster, Service Provider may refer Broadcaster to certain third-party software or services, such as ad replacement software providers. Service Provider's referral to any such third-party software or service does not constitute an endorsement by Service Provider of such third-party software or service; consequently, Service Provider hereby disclaims all liability associated with Broadcaster's use of such third-party software or service.
When Broadcaster plays a broadcast or piece of media using Jetcast®, the UniversalPlayer™, RadioLoyalty™, and/or ReplaceAds™, we may use web beacons to report to us, and/or a third-party traffic measurement company, that a session has started and stopped. We currently use ComScore web beacons.
5. Ownership of Intellectual Property.
Broadcaster acknowledges that the content available on or through the Services, including, but not limited to all software, text, visual, audio, user content, and other media content ("Content") and Service Provider's trademarks and logos, including Jetcast®, the UniversalPlayer™, RadioLoyalty™, and ReplaceAds™ ("Marks"), are owned by or licensed to Service Provider and are protected under U.S. and international laws. Broadcaster acknowledges that it does not acquire any ownership rights by using the Services. Broadcaster agrees not to copy, redistribute, publish, change, modify, embed, frame or otherwise exploit material from the Services, except as expressly permitted herein, without the express prior written permission of Service Provider. Service Provider shall own the rights to the data created and collected from use of the Services by Broadcaster and Broadcaster's users. Broadcaster does not obtain any data rights in any information. a) All comments, feedback, suggestions, ideas and other submissions ("Feedback") transmitted to Service Provider in connection with the use of the Services shall be the exclusive property of Service Provider.
6. Use Restrictions.
7. LIMITATION OF LIABILITY.
SERVICE PROVIDER IS PROVIDING THE SERVICES TO BROADCASTER ON AN "AS IS" BASIS. SERVICE PROVIDER AND ITS THIRD-PARTY SOFTWARE PROVIDERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. NEITHER SERVICE PROVIDER NOR ITS THIRD-PARTY SOFTWARE PROVIDERS SHALL BE LIABLE FOR ANY LOSS OF BUSINESS, LOST PROFITS, LOST DATA, LOST SAVINGS, FAILURE OF SECURITY OR ANY OR ALL INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, HOWEVER CHARACTERIZED, WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE AND/OR WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE. IN NO EVENTWILL (A) SERVICE PROVIDER, OR (B) WITH REGARD TO THIRD-PARTY SOFTWARE, THE APPLICABLE LICENSOR, BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE SERVICES, OR, IF APPLICABLE, THE THIRD-PARTY SOFTWARE, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE OR LOST PROFITS, OR DAMAGES THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION, FAILURE OF PERFORMANCE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO SERVICE PROVIDER'S RECORDS, PROGRAMS OR SERVICES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT OF ANY BREACH BY SERVICE PROVIDER OF THIS AGREEMENT, SERVICE PROVIDER'S LIABILITY TO BROADCASTER WILL NOT EXCEED THE AMOUNT PAID TO SERVICE PROVIDER BY BROADCASTER DURING THE PREVIOUS SIX MONTHS.
8. BROADCASTER'S REPRESENTATIONS.
9. License Grant.
By using Service Provider's services, Broadcaster grants Service Provider a worldwide, exclusive right and license to promote, perform and display Broadcaster's Station as necessary (and only as necessary) for Service Provider to provide the underlying Services.
10. Press Release.
Service Provider may release a press release regarding this Agreement. Broadcaster shall not release a press release regarding this Agreement without the prior written approval of Service Provider.
Subject to the terms and conditions of this Agreement, Broadcaster understands and agrees that Service Provider will attempt to keep its network of servers running continuously. Service Provider's servers will, from time-to-time, be disconnected due to routine maintenance windows, upgrades and other required events. Broadcaster understands and agrees that Service Provider's servers may be unavailable for a variety of reasons, including, without limitation, (i) equipment malfunctions, (ii) periodic maintenance or repairs, or (iii) other causes beyond the control of Service Provider. In the event that Service Provider's servers will need to be disconnected due to routine maintenance windows, upgrades or required events, Service Provider will attempt to notify the Broadcaster via electronic mail to the e-mail address or e-mail addresses which Service Provider has on file for the Broadcaster. Jetcast® brand streaming clients are responsible for maintaining their current e-mail address information with Service Provider by emailing support< at >RadioLoyalty< dot >com if their primary e-mail address for notification is changed. Broadcaster assumes responsibility for making a separate backup copy of any information posted to our servers. Service Provider is not responsible for lost materials, data or information. Additionally, Broadcaster is responsible for testing any changes that Service Provider makes to Broadcaster's Station at Broadcaster's request to make sure that such changes are in accordance with such Broadcaster request.
12. Inclusion of Station(s) on all Service Provider's Websites and Guides. During the Term of this Agreement, Broadcaster agrees to allow the Station(s) to be listed in all of Service Provider's websites, program guides, API's and other properties designed to increase distribution.
13. Inclusion of Service Provider Hyperlink on Station(s) Websites During the Term of this Agreement, Broadcaster agrees to add a hyperlink in the footer of its website(s) that links to Service Provider website as directed by Service Provider. In the event that Broadcaster uses a Service Provider mobile App, Broadcaster must also link to Service Provider's UniversalPlayer from its website.
"Confidential Information" shall mean any term of this Agreement, and any proprietary information or data, either oral or written, received from and designated as confidential by the disclosing party. This shall include pricing information for the Services and all of the information on Exhibit A hereto. It does not, however, include information that (i) is already known by the recipient, (ii) become publicly known through no wrongful act of the recipient, or (iii) is received by the recipient from a third-party without similar restriction and without breach of this section. In addition, under no circumstances shall Broadcaster's Confidential Information include any Broadcaster Content or any other content, software, materials or other information delivered by Broadcaster to Service Provider to be posted on Service Provider's servers. Each party agrees that it will use the same care to protect against the unauthorized duplication, use, publication, or disclosure of such Confidential Information of the other party as it uses to protect its own proprietary and Confidential Information, and will not use or disclose such Confidential Information except in connection with the purposes of this Agreement, unless authorized in writing by the other party. All materials, including copies and summaries, containing the other party's Confidential Information shall be destroyed or returned to such party, as instructed by such party, by the recipient promptly upon request.
14. Term and Cancellation.
The initial service term shall commence on the date this Agreement is submitted by Broadcaster and accepted by Service Provider. The initial term shall be ninety (90) days. After the 90 days, this Agreement shall automatically renew for subsequent one (1) year terms. Prior to the expiration of the initial term or any renewal term of this Agreement, Broadcaster may cancel this Agreement effective at the end of the then-current term with written notice given at least 30 days prior to the end of such term. All account cancellations and billing changes must be submitted to support< at >RadioLoyalty< dot >com or faxed to Attention Accounting 805-456-0405 ; no verbal cancellation requests will be accepted. In the event Broadcaster breaches any of the representations and warranties as determined by Service Provider in its sole and absolute discretion, Service Provider shall be entitled to terminate Broadcasters' access and use of the Services. Broadcaster agrees to have an exclusive, prominent link to the RadioLoyalty UniversalPlayer from its website home page during the entire term of this Agreement. Broadcaster also agrees that RadioLoyalty shall have exclusive Guide rights for all Broadcasters' stations. For purposes of this Agreement, Guide(s) shall mean any other place than radioloyalty.com where the stream can be accessed and/or listened to including mobile devices, other online websites, and any other devices. Broadcaster may publish its stations in other online Guide(s) so long as the RadioLoyalty UniversalPlayer is the exclusive link to the station from the third-party guide. In the event that Broadcaster does not have an exclusive, prominent link to the RadioLoyalty UniversalPlayer from its home page during the entire Term of this Agreement (other than for a technical issue that is resolved promptly) and/or Broadcaster includes its station(s) in an unauthorized Guide, Broadcaster shall forfeit any Service Fees previously due to Broadcaster and be subject to a $100 per month cancelation fee for any months remaining under the term, plus any other revenues made through any other broadcasting platform during the term of this Agreement. If Broadcaster ceases doing business completely and does not have any other player options linking from its website(s), then the $100 per month cancelation fee shall not apply.
Each party represents and warrants that it has the right and authority to enter into this Agreement and bind the Broadcaster to the terms of this Agreement, and that by entering into this Agreement, it will not violate, conflict with or cause a material default under any other contract, agreement, indenture, decree, judgment, undertaking, conveyance, lien or encumbrance to which it is a party or by which it or any of its property is or may become subject or bound. Each party shall, at its own expense, make, obtain, and maintain in force at all times during the term of this Agreement, all applicable filings, registrations, reports, licenses, permits and authorizations necessary to perform its obligations under this Agreement. Broadcaster acknowledges and agrees that it is an independent contractor and not an employee, partner or joint venturer of Service Provider for any purposes. Broadcaster further acknowledges and agrees that it has no authority to enter into any commitments on Service Provider's behalf or to negotiate the terms of any agreements with any third-party user of the Services or to hold any funds payable to or belonging to Service Provider. This Agreement will be governed by and construed in accordance with the laws of the State of California, without giving effect to any conflict of laws rules or provisions. Broadcaster agrees that any action of whatever nature arising from or relating to this Agreement or the Services will be filed only in the state or federal courts located in Santa Barbara, California. Broadcaster hereby consents and submits to the personal jurisdiction of such courts for the purposes of any such action. If any provision of this Agreement is found to be unlawful, void, or unenforceable, then that provision will be deemed severable from this Agreement and will not affect the validity or enforceability of any remaining provisions. In any legal proceeding, Service Provider shall be entitled to receive from Broadcaster its legal and court fees incurred to enforce this Agreement.
This Agreement shall constitute the entire agreement between the parties regarding the Services and shall supersede any and all understandings, whether written or oral. This Agreement shall be binding upon Broadcaster's successors and assigns. This Agreement may not be assigned by Broadcaster without Service Provider's written permission except by succession. Service Provider may assign this Agreement. Any waiver of any provision of this Agreement shall not constitute a modification to this Agreement or a permanent waiver of such provision unless it is in writing and signed by an officer of Service Provider.
16. Force Majeure.
Service Provider shall not be liable to Broadcaster under this Agreement for any delay or failure to perform its obligations under this Agreement if such delay or failures arise from any cause(s) beyond such party's reasonable control, including by way of example labor disputes, strikes, acts of nature, floods, fire, lightning, utility or communications failures, earthquakes, vandalism, war, acts of terrorism, riots, insurrections, embargos, or laws, regulations or orders of any governmental entity. Notwithstanding the foregoing, Service Provider shall exercise reasonable due diligence to resume performance hereunder as soon as commercially possible.
17. Management of Services.
Service Provider has the absolute right to manage, regulate, control, modify, and/or eliminate any of the Services including, but not limited to the Program and any Virtual Currency and/or Virtual Goods, as it sees fit in its sole discretion, and Service Provider shall have no liability to Broadcaster or anyone else for the exercise of such rights. Service Provider reserves the right at its sole discretion to terminate the Program at any time, for any reason, with or without notice. In the event that a Program User (as that term is defined in the User Terms of Service, then in effect) has no activity for a period of six (6) consecutive months, then Service Provider reserves the right to close the User's account and any Points accumulated by User may expire. All limitations of liability and other provisions of this Agreement shall survive any such termination.
Payment Processing: Service Provider's fee for processing payments on behalf of the Broadcaster shall be 7.5% of the transaction amount plus the actually incurred third-party transaction fees. Donations: For for-profit companies, Service Provider's fee for donations is 7.5% of the transaction amount plus the actually incurred third-party transaction fees. For non-profit companies, Service Provider's fee for processing donations is limited to only the actually incurred third-party transaction fees. Broadcaster shall be liable to Service Provider for 100% of all returns, charge backs, and any related fees and shall pay Service Provider at the time such fees are incurred.
Unlimited Streaming: As its fee for allowing Broadcaster to use RadioLoyalty's Jetcast® unlimited streaming solution, RadioLoyalty shall be entitled to two minutes per broadcast hour of audio or video in-stream advertising avails on each Station using Jetcast® streaming ("Streaming Fee"). Broadcaster agrees to schedule such ads in accordance to RadioLoyalty™ Video Ad Scheduling Procedures that can be found by logging in to Broadcaster's RadioLoyalty™ account and selecting the "In-stream" option in the Menu section. UniversalPlayer™: As its fee for allowing Broadcaster to use RadioLoyalty's UniversalPlayer™ with RadioLoyalty™, RadioLoyalty shall be entitled to one in every four Display Sessions generated by the UniversalPlayer™ ("UniversalPlayer™ Fee"). The UniversalPlayer™ automatically generates twenty four display sessions per hour; twelve sessions in the 300x250 region and twelve sessions in the 768x60 region. A "Display Session" shall be defined to mean a five minute session in which one or more display ads may be presented. For each display ad region in the UniversalPlayer™, RadioLoyalty shall receive the first, fifth, ninth, etc. Display Session generated by the UniversalPlayer™ during each listening session. Each listening session shall start at the first Display Session. That is, if a listener closes a UniversalPlayer™ tuned to Station A that is in the third Display Session and opens a new UniversalPlayer™ session for a station operated by Broadcaster, the Display Session in the new listening session shall start at one and not four. The UniversalPlayer™ Fee and the Streaming Fee shall collectively be referred to as RadioLoyalty's "Fees". RadioLoyalty™ Three Cent Per Hour Offer Terms and Conditions
A. Use our UniversalPlayer™ with RadioLoyalty™, and do NOT supply ad tags for display. B. Use our Jetcast® unlimited streaming solution (Icecast version only). C. Schedule in-stream ads pursuant to our In-stream Ad Scheduling Procedures (defined below). D. Agree to our standard Broadcaster Terms of Service Agreement. Our three cent offer applies only to Qualified Listener Hours ("QLH") as defined below. (Please note: Your QLH number will be different from your monthly total time spent listening ("TTSL") number, and will be larger or smaller than your TTSL depending on how many In-stream ads you schedule, and are actually served.)
1. For each Station that Broadcaster signs up to use the UniversalPlayer™ with RadioLoyalty™ and Jetcast® streaming during the Offer Period, RadioLoyalty shall pay Broadcaster at least three cents per QLH generated by such Station(s) during each of the first three calendar months from the date of sign-up (the "Offer"). To sign up Station(s), Broadcaster must agree to RadioLoyalty's standard Broadcaster Terms of Service Agreement found at: http://radioloyalty.com/legal-broadcaster-termsofuse.php. 2. QLH can only be generated by the Broadcaster's Station(s) that use the UniversalPlayer™ and Jetcast® streaming according to RadioLoyalty's standard Broadcaster Terms of Service Agreement. 3. RadioLoyalty shall be entitled to its standard Fees for use of the UniversalPlayer™ with RadioLoyalty™ and Jetcast® streaming during and after the Offer. 4. A "Qualified Listener Hour" or "QLH" shall be defined to mean the total number of In-stream video ads served in the calendar month by a Station, as shown in the RadioLoyalty™ Broadcaster Reports, divided by 8. If the resultant number is less than zero, RadioLoyalty may terminate the offer immediately. The In-stream video ads must be scheduled in accordance to our In-stream Ad Scheduling Procedures that can be found by logging in to Broadcaster's RadioLoyalty™ account and selecting the "In-stream" option in the Menu section. Broadcaster acknowledges its understanding that the RadioLoyalty™ Broadcaster Report will only record In-stream video ads served to a U.S. listener from a U.S. IP address and which is using a UniversalPlayer™ and Jetcast streaming, and will not show the four impressions per TTSL of Jetcast® streaming that RadioLoyalty retains as its Fee for providing Broadcaster unlimited streaming to the UniversalPlayer™. 5. The Offer shall not apply to any QLH generated by a Station unless that Station has sold RadioLoyalty all of the display impressions generated by the UniversalPlayer™ in such calendar month. 6. To qualify for the $500 signing bonus you must stream 10,000 hours per month as reported in our RadioLoyalty online reports within the first three months of using our service. We will pay the $500 signing bonus as soon as your station crosses the 10,000 hour mark in our online reports. This offer applies to new customers only.
The Offer is available for a limited time and RadioLoyalty reserves the right to terminate the Offer at anytime (the "Offer Period"). Once terminated, Broadcasters can still sign-up stations to earn revenue from RadioLoyalty, however, it will be pursuant to the terms in RadioLoyalty's standard Broadcasters Terms of Service Agreement, and not the Offer.
The Offer shall be limited to the first 90 days that a Station uses the UniversalPlayer™ with RadioLoyalty™ and Jetcast® streaming. After the first 90 days, the Offer shall automatically terminate. During the continued term, the rates RadioLoyalty pays to Broadcaster to acquire any of the ad impressions generated by the UniversalPlayer™ shall be subject to current market conditions and pricing and could be higher or lower than the original offer. RadioLoyalty shall provide broadcaster access each day in the RadioLoyalty™ online reports which shall be governed by RadioLoyalty's standard Broadcasters Terms of Service Agreement. Broadcaster is able to terminate this Offer at any time by providing RadioLoyalty with written notice of its intent to terminate the Offer. Broadcaster may terminate the Broadcasters Terms of Service Agreement by following the termination process contained in that agreement.
Accounting and Reporting:
The numbers in the RadioLoyalty™ reports shall govern the Offer. To determine the amount owed to Broadcaster each month, RadioLoyalty shall multiply the QLH of each of Broadcaster's stations by three cents and shall pay Broadcaster the greater of the resultant or the amount shown as due in the Broadcaster's RadioLoyalty report. For example, if the Broadcaster's RadioLoyalty™ report shows that 600,000 in stream video ads were served during the month, RadioLoyalty shall divide 600,000 by 8 and then multiply the resultant (75,000) (QLH) by three cents to yield $2,250. RadioLoyalty shall then pay Broadcaster $2,250.