Listing Agreement

This BROADCASTER LISTING AGREEMENT (the “BLA”) sets forth the standard terms applicable to owners or operators of Internet-only webcast stations and over-the-air broadcast stations (each a “Station” and all collectively, the “Stations”) who wish to have their Station’s programming listed in the free, online index of Stations maintained by Broadcast Online Radio, and any successor entity thereto (the “Company”) (the index is referred to herein as the “Channel Listing”). This BLA also sets forth the terms for the distribution services, if any, offered by Company.
YOU SHOULD CAREFULLY READ THE TERMS OF THIS BLA BEFORE CLICKING “ACCEPT” AND PROVIDING THE INFORMATION AND CONTENT SET FORTH HEREIN THAT SUPPORTS YOUR PARTICIPATION IN THE Channel Listing AND ACCEPTANCE OF OTHER SERVICES PROVIDED BY COMPANY. THIS BLA CONSTITUTES A BINDING LEGAL CONTRACT BETWEEN YOU AND COMPANY.
BY (AS APPLICABLE), CLICKING “ACCEPT” AND/OR OTHERWISE ACKNOWLEDGING ACCEPTANCE IN WRITING OR BY PROVIDING THE METADATA OR CONTENT, YOU (“PUBLISHER”) CONFIRM THAT YOU HAVE READ AND ACCEPT ALL OF THE TERMS SET FORTH IN THIS BLA.
1. Grant of Rights.
(a) Inclusion in Channel Listing. By entering into this BLA, Publisher hereby authorizes Company to incorporate Publisher’s Station(s) in the Channel Listing.
(b) Linking. Publisher hereby authorizes Company to provide links to the Station(s) and the Station’s transmissions through the Company website (www.broadcastonlineradio.com) and any successor website thereto (the “Website”) and any applications or software tools now known or hereafter developed by Company to access transmissions made by online and Internet-only stations (including the Stations), including, but not limited to, applications and software tools (collectively, “Applications”) available for use on mobile devices, tablet computers, eReaders, handheld gaming players, set top boxes, and portable computers (collectively, “Devices”).
(c) Identification. Company may identify in real time in or through the Channel Listing the identification of content then being streamed on a Station as well as any content previously transmitted by a Station. Company may also link to and publicly display and publicly perform any information provided by a Station or in a Station transmission, including, but not limited to, radio DJ information, song lyrics, song information, artist biographies, concert information, and the like (collectively, “Content”).
(d) Use of Metadata. Publisher authorizes Company to reproduce, publicly perform, publicly display, and distribute the Metadata (as defined below) and to sublicense the foregoing rights to the Metadata to third parties for the purpose of providing access to the Channel Listing and the availability of Station transmissions on third-party websites (“Syndicated Websites”). Publisher acknowledges and agrees that Metadata may be used and made available on Syndicated Websites, Applications and Devices that Company powers as part of its services, including, by way of example and not limitation, (i) search and portal sites that identify broadcast radio streaming services as part of their search results; (ii) widgets that enable Syndicated Websites to link to broadcast radio streaming media players; and (iii) Internet-connected devices such as Logitech’s SqueezeBox, Microsoft’s Window Media Extender, and portable WiFi radio devices.
(e) Customization. Publisher hereby grants Company and Company’s sublicensees the right to customize the presentation of a Station’s transmission to a User (as defined below). Notwithstanding the preceding sentence, Company will not modify or edit a Station’s transmissions but Publisher hereby authorizes Company to publicly display or publicly perform advertising in conjunction with a Station’s transmission, in Company’s discretion.
(f) Exploit. Publisher hereby grants to Company a worldwide, non-exclusive, royalty-free, sublicenseable, and transferable license to reproduce, distribute, publicly display, communicate to the public, publicly perform (including by means of a digital audio transmission), and otherwise use and exploit the Metadata and Content and the transmission signal of a Station in which such Metadata and Content is embodied for the purposes contemplated under this BLA via any transmission medium, device or application now known or hereafter developed.
(g) Rights of Users. Publisher hereby grants each User the limited right to access and receive Station transmissions and the Metadata and Content embodied therein as permitted through the functionality of the Websites, Applications, Syndicated Websites, and Devices.
2. Publisher Obligations. Publisher shall provide Company with a suitable logo, service marks, streaming URLs, genre data, and station or identification data (“Metadata”) that will be displayed and distributed on the Website, Applications, Syndicated Websites, and Devices. Publisher shall use commercially reasonable efforts to assist Company in facilitating transmissions from Stations to end users and to make its transmissions available through the Channel Listing, the Website, Syndicated Websites, Applications, and Devices whenever such transmissions are otherwise made available by Publisher.
3. Cross Promotion. The parties may implement links on each other’s websites, the size, look and feel, and placement to be approved by the parties. Each such link would permit website visitors to navigate between the Website, Syndicated Websites, and Applications and the Publisher’s website for a Station.
4. Terms of Service for Users. Persons with access to the Website, Syndicated Websites, Devices, and Applications (each a “User” and, collectively, the “Users”) may initiate and receive transmissions made from and by Publisher’s Station(s) by clicking on a link provided in the Channel Listing. In addition to any terms of use that may be established by an individual Station, a Syndicated Website or the manufacturer or distributor of Devices, Users initiating transmissions by clicking on a link in the Channel Listing are subject to the terms of service provided on the Website or the Applications (the “Terms of Service”).
5. No Third Party Beneficiaries. Nothing in this BLA shall be deemed to confer any rights or benefits upon any person or entity not a party to this BLA.
6. Publisher Representations and Warranties.
(a) General Representations and Warranties. Publisher represents, warrants, and covenants to Company that: (i) Publisher is duly organized and validly existing under the laws of the jurisdiction of its organization, and has all requisite power and authority to execute, deliver and perform this BLA and to consummate the transactions contemplated hereby; (ii) Publisher has duly authorized the acceptance, execution, and delivery of this BLA; (iii) this BLA constitutes a legal, valid and binding obligation of Publisher; and (iv) this BLA is enforceable against Publisher in accordance with its terms, except to the extent such enforceability may be limited by bankruptcy, reorganization, insolvency or similar laws of general applicability governing the enforcement of the rights of creditors.
(b) Additional Representations and Warranties. Publisher further represents, warrants, and covenants to Company that: (i) Publisher owns or has the necessary licenses, rights, consents and permissions to use and authorize Company to use all trademark, copyright and other proprietary rights in and to the Metadata and Content in the manner contemplated by this BLA and the Terms of Service, including obtaining all necessary licenses required for the Station’s reproduction, public display, communication to the public, and public performance (including by means of digital audio transmissions) of copyrighted musical works and sound recordings, including on a through-to-the-audience basis through the Channel Listing, Syndicated Websites, Applications, and Devices; (ii) Publisher has filed all necessary paperwork for and complies with the rates, terms, and conditions of the statutory licenses set forth in Sections 112 and 114 of the United States Copyright Act or has entered into binding and valid agreements with SoundExchange, Inc., for the reproduction and digital audio transmission of sound recordings on rates, terms, and conditions authorized under the foregoing statutory licenses; and (iii) Company will not owe any royalties to any third party, including, but not limited to, any performing rights or collective licensing organization (e.g., ASCAP, BMI, SESAC, SoundExchange), musical work copyright owners (e.g., music publishers) or sound recording copyright owners (e.g., record labels) or their agents or exclusive licensees, featured or nonfeatured vocalists or musicians, songwriters, composers, unions, guilds, producers, engineers or the like for any reproductions, public displays, communications to the public or public performances made when Company facilitates transmissions from Stations to Users through the Channel Listing, Website, Applications, Syndicated Websites, or Devices.
7. Reservation of Rights. The parties acknowledge and agree that no ownership interest in intellectual property or other rights are assigned or otherwise transferred under this BLA, and disclaim any and all implied licenses. Except for the licenses expressly granted in this BLA, as between the parties, Publisher retains all rights, title, and interest in the Metadata and Content, and Company retains all rights, title, and interest in its services, the Channel Listing, the Website, the Applications, and any software utilized to operate or power the foregoing, including any intellectual property rights therein or thereto. Under this BLA, the parties each continue and shall own any information collected by such party through its service, website, stream, player or device (“Properties”) including but not limited to, personally identifying transaction data (such as names, mailing addresses, email addresses and telephone numbers), clickstream data, and demographic information (the “User Information”), and the other party shall not obtain any rights in such information or advertising fees and revenues associated with such Properties or User Information.
8. Term and Termination. The initial term of this BLA shall commence as of the date of Publisher’s acceptance of this BLA (the “Effective Date”) and terminate on the one-year anniversary thereof (the “Initial Term”). This BLA shall automatically renew for additional one-year terms upon the termination of the Initial Term or any renewal term (each a “Renewal Term”). The Initial Term and each Renewal Term are, collectively, the “Term.” Either party may terminate this BLA upon thirty (30) days’ advance written notice to the other party; provided, however, that Company may terminate this BLA immediately pursuant to the terms of its then-current repeat infringer policy, as such policy may be amended from time to time.
9. Indemnification.
(a) Mutual Indemnification. EACH PARTY AGREES TO DEFEND, INDEMNIFY, AND HOLD THE OTHER PARTY HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, PROCEEDINGS, INJURIES, LIABILITIES, LOSSES, COSTS AND EXPENSES (INCLUDING REASONABLE OUTSIDE ATTORNEYS’ FEES) (COLLECTIVELY, “CLAIMS”), INCLUDING, BUT NOT LIMITED TO, CLAIMS ALLEGING NEGLIGENCE, COPYRIGHT INFRINGEMENT, AND/OR TRADEMARK INFRINGEMENT AGAINST THE OTHER PARTY, RELATING TO OR ARISING OUT OF THAT PARTY’S BREACH OF ANY TERM OF THIS BLA.
(b) Further Indemnification of Publisher. PUBLISHER FURTHER AGREES TO DEFEND, INDEMNIFY, AND HOLD COMPANY HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS OF ANY MUSICAL WORK OR SOUND RECORDING COPYRIGHT OWNERS OR THEIR AGENTS OR EXCLUSIVE LICENSEES FOR ANY REPRODUCTIONS, DISTRIBUTIONS, PUBLIC DISPLAYS, COMMUNICATIONS TO THE PUBLIC, PUBLIC PERFORMANCES (INCLUDING BY MEANS OF DIGITAL AUDIO TRANSMISSION), AND ANY OTHER USES OR EXPLOITATIONS ARISING OUT OF THE INCLUSION OF ANY STATION IN THE Channel Listing, THE LINKING TO ANY STATION TRANSMISSIONS, OR THE MAKING AVAILABLE OF ANY STATION TRANSMISSIONS, METADATA OR CONTENT THROUGH THE Channel Listing, THE WEBSITE, APPLICATIONS, SYNDICATED WEBSITES, AND APPLICATIONS.
10. Limitation of Liability. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, ARISING OUT OF OR RELATED TO THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS SECTION SHALL NOT APPLY TO EITHER PARTY’S (a) ABILITY TO OBTAIN INJUNCTIVE OR OTHER EQUITABLE RELIEF; AND (b) INDEMNIFICATION OBLIGATIONS UNDER SECTION 9. IN NO EVENT SHALL COMPANY’S LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE LESSER OF THE AMOUNTS PAID BY COMPANY TO PUBLISHER UNDER THIS BLA DURING THE 6-MONTH PERIOD PRECEDING PUBLISHER’S CLAIM AGAINST COMPANY, IF ANY, OR $250.
11. Miscellaneous
(a) Entire Agreement. This BLA constitutes the entire agreement and understanding between you (the Publisher) and Company with regard to the subject matter hereof, and supersedes all prior or contemporaneous oral or written agreements and representations between you and Company. Any amendment, modification or alteration of this BLA must be in writing and signed by the duly authorized representatives of you and Company in order to be effective. No additional terms proposed by you shall be binding upon Company unless specifically agreed to in writing by an authorized representative of Company.
(b) Additional Remedies. In addition to the rights and remedies provided herein, the parties may seek all rights and remedies available at law and/or equity.
(c) Relationship of the Parties. Nothing contained herein will be deemed to create, and the parties do not intend to create, any relationship of partners or joint venturers as between Publisher and Company with respect to this BLA.
(d) Severability. The invalidity or unenforceability of any provision of this BLA will not affect the validity of any other provision of this BLA, and in the event that any provision is determined to be invalid or otherwise illegal, this BLA will remain in effect and will be construed in accordance with its terms as if the invalid or illegal provision were not contained herein, provided that the parties will negotiate in good faith an equitable adjustment to this BLA so as to give effect to the intent so expressed and the benefits so provided.
(e) Choice of Law; Venue. This BLA, and all collateral matters relating thereto, will be governed and construed in accordance with the laws of the State of California as such laws apply to agreements between California residents performed entirely within California. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this BLA. The parties hereby agree that the jurisdiction of, or the venue of, any action brought by either party shall be exclusively in a state or federal district court sitting in Santa Clara Country, California, and both parties hereby agree to waive any right to contest such jurisdiction and venue.
(f) Waiver. No term or condition of this BLA will be deemed waived, and no breach will be excused, unless such waiver or excuse is in writing and signed by the party against whom such waiver or excuse is claimed.
(g) Rights Cumulative. Except as otherwise provided herein, the rights and remedies of either party as set forth in this BLA are not exclusive and are in addition to any other rights and remedies now or hereafter provided by law or at equity.
(h) Headings. The captions and headings in this BLA are intended only for convenience, and will in no event be construed to define, limit or describe the scope or intent of this BLA, or of any provision of this BLA, nor in any way affect the interpretation of this BLA.
(i) Assignment. This BLA shall be binding upon and inure to the benefit of Publisher’s and Company’s legal representatives, successors and assigns, but no assignment shall relieve Publisher or Company of their obligations under this BLA. Each party may assign its rights under this BLA and shall notify the other in writing within thirty (30) days of any assignment of any rights under this BLA.
(j) Survival. Sections 5, 6, 9, 10, and 11 shall survive the termination or expiration of this BLA.