LoudCity - Terms of Service

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Loud City LLC d/b/a LoudCity Network and loudcity.net, along with subdomains established by loudcity.net ("LoudCity") provides internet reporting and royalty payment services for internet webcasters, broadcasting non-interactive, non-dramatic audio content on the internet, as an intermediary between, on the one hand, its customers the webcasters (singularly the "User") and, on the other hand, ASCAP, BMI, SESAC and Sound Exchange (The "LoudCity Services"). The LoudCity Services are provided under these terms of use, which constitute an agreement between LoudCity and its customers based on adequate consideration the receipt and sufficiency of which are hereby acknowledged (the "Agreement").

By registering for LoudCity Services, User agrees to be bound by the terms and conditions set forth within this Agreement.

The Terms of Use are as follows:

1. Price: LoudCity charges a recurring monthly service fee relating to amounts owed or will be owed to ASCAP, BMI, SESAC and to Sound Exchange ("Licensors'") based on the User's webcasting activities under LoudCity's master licenses with those organizations. The service fee may be based on, among other things: (a) a percentage of the revenues of the User and/or of LoudCity if required by any Licensor; (b) a percentage of the expenses of the User and/or of LoudCity if required by any Licensor; (c) aggregate tuning hours; (d) number of listeners; (e) number of plays, and/or; (d) other factors as may be determined by any Licensor or by LoudCity over time (the "Service Fee").

2. Adjustment to Price: The Service Fee for the LoudCity Services are provided on a per-month price based on a User questionnaire when the User signs on. This price may be amended over time, based on price increases to LoudCity or otherwise, with or without notice. User shall report monthly radio station gross revenues and expenses to LoudCity within three (3) calendar days of the completion of each month. LoudCity reserves the right to carry forward the data from a User's prior month's report into any new month whenever a User has failed to file its monthly report on time (subject to adjustment as provided for below). User will also report other aspects of the activities of the User's webcasting as generally required by LoudCity from time to time or specifically requested by LoudCity from time to time. LoudCity will be allowed to automatically collect information from third parties relating to the User's webcasting activities, monitor webcasting and collect routine logs of the User's webcasting activities relating to or comprising playlists and listeners. Upon 30 calendar days' written notice, User will provide LoudCity with documents and records as may be requested by LoudCity to verify the accuracy of reports provided by User to LoudCity under the Agreement and/or these Terms of Use.

If in any month the amount owed Licensors and/or LoudCity exceeds the User's per month price by virtue of the User's webcasting activities the User will pay the difference within ten (10) calendar days of email notice by LoudCity of the additional amounts owed. LoudCity reserves the right to adjust the User's recurring Service Fee price (along with additional processing fees) with thirty (30) calendar days' email notice based on factors causing the User's payment obligations to Licensors and/or LoudCity to exceed the per-month price set from time to time. LoudCity Services do not include assuming the costs of taxes, fines, or levies, or for the cost of local or internet-related computer hardware or software to create or deliver webcasted broadcasts. Any such costs (or related or other costs additional to the scope of the specifically agreed-upon LoudCity Services) shall be solely the responsibility of the User and the User shall pay LoudCity for any such costs imposed on LoudCity upon ten (10) calendar days email notice to the User.

3. Web Radio Station Location: The User's stream URLs will only exist on a page provided for by LoudCity, although the streamed media will not be stored and/or streamed through LoudCity. LoudCity reserves the right to discontinue this requirement (without adjustment to price) if and when LoudCity is permitted to do so by the Licensors.

4. Restrictions on Use: Without the prior written consent of LoudCity in each instance, the User shall and will not: rent, lease, transfer, or resell or attempt to resell any of LoudCity Services; provide any direct links or access to LoudCity Services other than as authorized by LoudCity; charge a fee for any transmission or reception of any webcasting services subject to this Agreement and/or these Terms of Use; allow or assist in the recording of any webcasted programming subject to this Agreement and/or these Terms of Use; allow or assist in the retransmission of any webcasted programming subject to this Agreement and/or these Terms of Use; allow or assist others to publish any content from any webcasted programming subject to this Agreement and/or these Terms of Use for download by others on an on-demand basis.

5. Content Guideline: User agrees not to post, upload or transmit to the servers of LoudCity or to any third party server used for User's webcasting any sound recordings, communications, text, graphics or other information (collectively, "Material") that:

is fraudulent, relates to hate-groups or other racist activities
defames, abuses, harasses or threatens others
contains any viruses, trojan horses, worms, time bombs, cancelbots, or other disabling devices or other harmful component intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information
advocates or encourages any illegal activity
spam or "mass" e-mail any user, visitor or member of LoudCity
infringes upon the copyright, patent, trademark, trade secret, publicity right or other intellectual property or proprietary right of any third party
violates the privacy of individuals, including other users of the Site
violates any applicable local, state, national, or international law
(including, without limitation, the Digital Millennium Copyright Act (the "DMCA"), the United States Copyright Act, the Small Webcasters Settlement Act of 2002, and/or international copyright laws and treaties).

User shall comply with all laws and regulations applicable to User's use of the LoudCity Services, the User's radio site (the "Site"), and the Material. LoudCity in its sole discretion shall determine the User's compliance with the foregoing guidelines and reserves the right to delete (and/or demand the deletion of) without prior notice any material that it deems to be non-complying or otherwise objectionable for any reason, and/or to discontinue services to the User (without adjustment to price) until adequate assurances are provided that the non-complying activities will cease.

6. Specific DMCA Requirements: The DMCA governs certain requirements and rules with which persons transmitting digital media must comply. Without limiting the applicability of all other laws, rules and contractual provisions that may govern the User's activities, the User agrees to comply with the following specific rules in connection with its webcasting activities:

User may not include in User's broadcast activities ("Broadcast Programming") specific sound recordings within one (1) hour of a request by a listener or at a time specifically designated by the listener.
In any three-hour period, User should not intentionally program more than three songs (and not more than two songs in a row) from the same recording; User should not intentionally program more than four songs (and not more than three songs in a row) from the same recording artist or anthology/box set.
Continuous looped Broadcast Programming may not be less than three hours long.
Retransmission's of User's Broadcast Programming may be performed at scheduled times as follows:
Broadcast Programs of less than one-hour shall not be broadcast more than three times in a two-week period
Broadcast Programs longer than one hour shall not be broadcast more than four times in any two-week period
User should not publish advance program guides or use other means to pre-announce when particular sound recordings will be played or the order in which they will be played.
User should only include in User's Broadcast Programming sound recordings that are authorized for performance in the United States.
User should pass through (and not disable or remove) identification or technological protection information included in the sound recording (if any).
7. Links to Other Sites: Any third-party sites to which the User's Site may link are not under LoudCity's control, and LoudCity does not assume any responsibility or liability for any information, content, communications or materials available on such third-party sites. Absent express language to the contrary, LoudCity does not intend links contained on the Site to be referrals to, or endorsements of, the linked third-party sites or the entities that operate them, and such links are provided for convenience only.

8. Disclaimer and Limitation of Liability: THE LOUD CITY SERVICES, INFORMATION, CONTENT, AUDIO TRANSMISSIONS OR OTHER DATA OF ANY KIND OR NATURE MADE AVAILABLE AT THE SITE (COLLECTIVELY, "Information") ARE PROVIDED "AS IS", AND ALL REPRESENTATIONS AND WARRANTIES, EITHER EXPRESS OR IMPLIED ARE DISCLAIMED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. LOUD CITY MAKES NO WARRANTY, REPRESENTATION OR GUARANTY AS TO THE CONTENT, SEQUENCE, ACCURACY, TIMELINESS OR COMPLETENESS OF THE SITE OR THE INFORMATION OR THAT THE INFORMATION MAY BE RELIED UPON FOR ANY REASON. LOUD CITY MAKES NO WARRANTY, REPRESENTATION OR GUARANTY THAT USE OF THE SITE, THE SERVICES OR THE INFORMATION WILL BE UNINTERRUPTED, SECURE, VIRUS-FREE OR ERROR-FREE OR THAT ANY DEFECTS CAN BE CORRECTED. WITHOUT LIMITING THE FOREGOING PROVISIONS OF THIS SECTION 8, LOUD CITY SHALL HAVE NO LIABILITY FOR:

any loss or injury caused, in whole or in part, by its actions, omissions, or negligence, or for contingencies beyond its control, in procuring, compiling, or delivering the Information, the Site or the Services
any errors, omissions, or inaccuracies in the Information regardless of how caused, or delays or interruptions in delivery of the Information
any decision made or action taken or not taken in reliance upon the Information furnished hereunder
any losses or damages whatsoever, whether in contract, tort or otherwise, from the use of, or reliance on, the Information, or from the use by User of the Internet generally
any special or consequential damages that are directly or indirectly related to the use of, or the inability to use, the Services or the Site, even if LoudCity has been advised of the possibility of such damages; or
any lost profits or special, incidental or consequential damages (no matter how they might arise, including from LoudCity's negligence) arising out of or in connection with the Information, the Services, the Site or the Terms of Use.
Notwithstanding any provision of these Terms of Use to the contrary, LoudCity's total liability to User is limited to $100.00. Some states do not allow the foregoing limitations of liability, so they may not apply to User. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to User.

9. Privacy and Communications: Any communication, information or other material User transmits or posts to the Site, by electronic mail or otherwise (other than personally identifiable information about User), including any answers to questions, comments, suggestions, or other data supplied by User is, and will be treated as, non-confidential and non-proprietary. User hereby grants to LoudCity a non-exclusive, worldwide, perpetual fully paid-up license to use any such communication, information or material for any purpose, including, but not limited to, reproduction, disclosure, transmission, publication, distribution, advertising, marketing, promotion, research, broadcast, display, modification, syndication, licensing and posting. LoudCity's use of personally identifiable information, as well as LoudCity's use of cookies and other tracking methods, is governed by the terms of LoudCity's Privacy Policy, as adopted and/or amended from time to time. By accepting these Terms of Use by registering for the LoudCity Services, User expressly consents to disclosures of such personally identifiable and other personal information to third parties, and to LoudCity's use of User's information, as set out in LoudCity's then-current Privacy Policy, which is incorporated herein by reference. Because LoudCity's Privacy Policy may change from time to time, User should also review it regularly for updates.

10. Notice of Threatened or Actual Claims: User will inform LoudCity immediately upon receipt of notice from any third party alleging that the User Material or Site or any part of it: (i) infringes any third party copyright, trademark, trade secret or any publicity, privacy or patent right or other similar personal or proprietary rights; and/or (ii) is in breach of any of the terms of this Agreement.

11. Representations and Warranties: User represents and warrants that:

User has full right and power to enter into and perform these Terms of Use, and have secured all third party consents necessary to enter into these Terms of Use;
all factual assertions that User has made and will make to LoudCity are true and complete;
User (if a natural person) is of the age of majority, has the right to enter into legally binding agreements, and has the full and complete right to agree to these Terms of Use;
LoudCity's use of User's marks, and any updates and modifications of them, shall not violate or infringe any intellectual property rights or any publicity or privacy right;
LoudCity's reference or link or handling the User's Material or any part of it from LoudCity or any other part of the service shall not breach any content standards requirements or codes promulgated by any relevant authority including all authorities to whom User and LoudCity may be subject and also including the Internet Industry Association Code of Conduct;
the User's Content will not contain or disclose processes or instructions which if implemented, might cause damage or injury to any person or property;
the User's Content which if unsuitable for minors, will be marked or clearly identified by warnings that the User's Content is unsuitable in accordance with current industry standards, content requirements or codes of practice promulgated by the relevant authority;
the User has authority or has obtained any and all necessary approvals or licenses (compulsory or otherwise) for the storage, use, transmission and retransmission of the User's Content or any part of it over the Internet (other than as provided for through LoudCity's Services) and that such authority, approval or license, if any, is current and in full force and effect;
no litigation is pending or threatened with respect to the User's Content or any part of it;
all service or product claims made by User pursuant to or in connection with this Agreement shall be true and correct and fully substantiated in accordance with applicable government laws and regulations, and User shall not perform any act (or fail to perform any act) in violation of any government law, statute, or regulation;
by its duly authorized representative, User has read and understood the content of this Agreement, and;
User shall at all times comply with the provisions of applicable laws, rules and regulations and with LoudCity's policies, including without limitation LoudCity's Terms of Use and Privacy Policy as such may be adopted and/or amended from time to time.
12. Indemnification: User shall indemnify hold harmless and defend LoudCity and the officers, directors, employees, partners, principals, agents and representatives of LoudCity from, against and in respect of any and all demands, claims, actions, causes of action, liabilities, losses and expenses, including reasonable attorneys' fees arising out of or relating to any breach by User of any covenant, representation or warranty made by User in this Agreement, including without limitation, any claims that User's programming violates the intellectual property rights of any third parties.

13. Limitation of Liability: LoudCity's total liability to User under this Agreement (for any and all actual or threatened claims under any theory) is strictly limited to $100.00, or the amount of payments and fees actually issued to LoudCity by User under this Agreement for the term in which the subject of the claim or demand applies, whichever is less. Without limiting the foregoing, LoudCity shall not be liable for any damages or fees or charges to User for the miscalculation or under-calculation of any fees due to any of the Licensors even if resulting from the negligence or fault of LoudCity.

14. Termination: LoudCity, in its sole discretion, shall determine User's compliance with the foregoing Agreement. LoudCity reserves the right terminate this Agreement with or without reason or prior notice (except as otherwise specifically provided for herein) and to take whatever action it deems necessary to limit potential liability upon itself and to cooperate with any pending legal investigation. Without limiting the foregoing, LoudCity may terminate User's use of the Services or access to the Site immediately and without notice if: (a) User breaches these Terms of Use; (b) User infringes the intellectual property rights of a third party in connection with the Services; (c) LoudCity is unable to verify or authenticate any information User provides to it, or (d) any material uploaded or transmitted by User to the Site violates any applicable laws or rights of any third party.

15. Governing Law and Jurisdiction: The Terms of Use shall be governed by and construed in accordance with the applicable laws of the USA, including U.S. intellectual property laws, and the laws of the Commonwealth of Massachusetts, without regard to conflict of laws principles. User and LoudCity agree that any and all disputes arising out of or related to these Terms of Use shall be resolved solely through binding arbitration pursuant to the provisions of this paragraph and the then-current rules of the American Arbitration Association (to the extent not inconsistent with this paragraph). Any arbitration arising out of or related to these Terms of Use shall be held in Boston, Massachusetts, before one independent arbitrator agreed upon by both parties. Any arbitration will be final and binding, and the arbitrator's order will be entered and enforceable in any court of competent jurisdiction. The arbitrator will be chosen within thirty (30) days of the submission of any issue to arbitration, the discovery (if any) will be completed within sixty (60) days thereafter, the hearing will occur within thirty (30) days thereafter and the arbitrator must render his or her decision, in writing, within thirty (30) days after the end of such hearing. To the extent litigation is appropriate or necessary in addition to the binding arbitration procedure outlined above, the User and LoudCity consent to the exclusive jurisdiction of the federal and state courts of the Commonwealth of Massachusetts for any and all such proceedings.

16. Changes to the Services: LoudCity reserves the right to change, suspend or discontinue any aspect of the LoudCity Services or the Site at any time. LoudCity will attempt to provide reasonable notice of such changes to the Services. LoudCity may also impose limits on features or restrict access to parts of its site. LoudCity may amend these Terms of Use at any time by posting amended Terms of Use on its web page. The amended Terms of Use shall be effective immediately upon posting. LoudCity therefore encourages User to review these Terms of Use frequently.

17. No Equitable Relief:In no event shall User be entitled to injunctive or other equitable relief based on any act or omission of LoudCity, or any breach of this Agreement by LoudCity.

18. Entire Agreement: This Agreement constitutes the entire understanding of the parties with respect to the subject matter hereof. There are no understandings, agreements, conditions or representations, oral or written, express or implied, with reference to the subject matter hereof, that are not merged herein, expressly referenced herein, or superseded hereby.

19. Independent Contractor: Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise between User and LoudCity. No employer-employee relationship, partnership or joint venture is created hereunder.

20. Severability: The provisions of this Agreement are independent of each other and the invalidity of any provision or a portion thereof shall not affect the validity or enforceability of any other provision. In the event that any particular provision is found to be invalid or unenforceable, such provision shall be deemed to have been replaced with a valid and enforceable provision that approximates as closely as possible the intent of the parties as reflected in the original provision. 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 effect the intent of the Parties, and the remainder of the Agreement shall continue in full force and effect.

21. No Waiver: Any delay or failure on the part of LoudCity to enforce any of its rights hereunder shall not be construed as a waiver of LoudCity's right to strictly enforce this Agreement at any subsequent time.

22. Survival and Assignment: The provisions containing the User's representations, warranties and payment and/or indemnification obligations shall survive any termination of this Agreement. User may not assign this Agreement without LoudCity's prior written approval.

23. Execution of Further Documents: 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.