This License Agreement ("Agreement") is between a content broadcaster via radio, internet or otherwise ("Station") which agrees to be bound hereunder, and Zenofon, Inc., a Delaware corporation, with its principal place of business at 421 Seventh Street, New York, NY 10001 doing business as Zenoradio ("ZenoRadio", each a "Party" and together the "Parties"). The "Effective Date" shall be the date on which Station fills out the information field for Broadcasters and accepts this Agreement via the ZenoRadio website located at www.zenoradio.com (the "Website"). Station agrees to be subject to the terms of this Agreement by checking the "I agree" box on the Website applicable to this Agreement.
ZenoRadio shall directly or through its affiliates provide functionality enabling callers from wireless and wired devices to listen to a live or recorded stream of the Station's Media. ZenoRadio will also afford the Station real time internet access to summaries of radio minutes traffic and other information ZenoRadio deems appropriate to share. ZenoRadio may at times use announcers known as "ZJ"'s selected by ZenoRadio. ZJ's may promote various stations, including, but not limited to, Station Media. ZenoRadio will require ZJ's to adhere to ZenoRadio's content and other standards which may include local advertising during the Stations advertising breaks. Station acknowledges that ZenoRadio shall be entitled to route content as ZenoRadio sees fit, including, but not limited to, transmission through third party telephone lines and networks. Within 10 business days after execution of this Agreement, ZenoRadio's service shall commence and be available to the listening public provided that Station has timely delivered all required elements for registration, including an active url stream in an audio stream format acceptable to ZenoRadio, together with other deliverables required by ZenoRadio in connection with provision of the service hereunder. ZenoRadio shall provide at least one dialup number enabling access to Station's Station Media at ZenoRadio's expense in a US area toll code of ZenoRadio's choice. Notwithstanding any provision in this Agreement, in the event that Station does not provide the Station Media stream in a high quality and reliable format which is acceptable to ZenoRadio, or is unresponsive to ZenoRadio's inquiries within 24 hours after notification, ZenoRadio may, at its sole discretion, terminate the services provided hereunder or allocate an alternate access number. ZenoRadio shall endeavor to accommodate listener volume and the Parties shall cooperate with respect to the forecasting of such volume.
Station hereby grants to ZenoRadio a non-exclusive, worldwide license to broadcast the Station Media, and allow end users to receive the Station Media through any means, including, but not limited to, via wireless or wired telephone connections through ZenoRadio's servers or website. Station undertakes to immediately notify ZenoRadio if Station becomes aware of any rights or claims which could impact on ZenoRadio's right to license content pursuant to the terms of this Agreement, including, but not limited to, Station's receipt of any notices whether written or oral indicating that Station in sharing the Station Media in any form has violated the intellectual property or broadcast rights of others. By granting a license hereunder, Station waives all claims arising from ZenoRadio's distribution of Station Media (as hereinafter defined) at all times, including prior to the execution of this Agreement, if applicable. Station shall provide an active url internet stream of the Station Media to ZenoRadio in a format acceptable to ZenoRadio. "Station Media" shall mean audio and any other content which Station is entitled to license to ZenoRadio regarding rebroadcasting rights of streamed content from its website or other means. Station hereby, grants to ZenoRadio any license necessary to receive streamed content from Station's website or other means and deliver the streamed content over a telephone, wireless network or other network, to end users to the extent Station has the right to grant such license. Station Media shall remain the property of Station. ZenoRadio may also make the Station Media available through the Website, subject to applicable law. ZenoRadio considers its transmission of content to fall under the copyright exemption of performances under 17 U.S.C. §110 (5)(A) for a "communication of a transmission embodying a performance or display of a work by the public reception of the transmission on a single receiving apparatus of a kind commonly used in private homes, unless – (i) a direct charge is made is made to see or hear the transmission; or (ii) the transmission thus received is further transmitted." Station agrees to ZenoRadio's use of the streamed content as described herein with the provided that ZenoRadio takes steps ZenoRadio deems appropriate, if necessary, to avoid such transmission being deemed a public performance thereunder.
Each Party grants to the other Party, a license to use the other Party's trademark in connection with the promotion of the Services provided by ZenoRadio hereunder, subject to any restrictions, modifications, and limitations provided by the Party to the other Party in writing.
ZenoRadio may, at its sole discretion, create, place or include, or allow for the inclusion by a third party, of audio, SMS, and prompt advertisements ("Ads") and in the case of transmission through the Website, online advertisements through other media. In the event that Station disapproves of specific advertisements, ZenoRadio shall use commercially reasonable efforts to accommodate Station's concerns and to remove the advertisement. ZenoRadio shall, following the conclusion of each calendar quarter, pay Station an amount equal to ten (10%) of the net revenue (comprised of revenue after payment of costs incurred by ZenoRadio to third parties to obtain such Ads) collected from advertisers for Ads. In the event net revenues for a quarter are less than $250, ZenoRadio shall have the right to defer payment to a succeeding calendar quarter. In the event that this Agreement is terminated in accordance with its terms, ZenoRadio shall pay Station amounts due hereunder which accrued through the date of termination.
This Agreement shall become effective on the Effective Date and shall continue for a period of one (1) year (the "Initial Term"). This Agreement shall thereafter renew automatically for successive one (1) year periods (each, a "Renewal Term"), provided that this Agreement shall not renew in the event a Party provides written Notice to other Party of its intent not renew this Agreement at least forty-five (45) days prior to conclusion of the Initial Term or any Renewal Term. Notwithstanding any provision herein, either Party may terminate this Agreement upon sixty (60) days' prior written notice to the other Party. Upon termination, all licenses and rights granted hereunder by any Party shall immediately terminate. Notwithstanding any provision herein, Sections 4, 5, 6, 8, 9 and 10 shall survive termination of this Agreement.
Indemnification by Station. Station shall at its own expense indemnify and hold harmless, and at ZenoRadio's request defend, ZenoRadio and its affiliates, subsidiaries, successors and assigns (and its and their respective officers, directors, employees, sublicensees, customers and agents) from and against any and all claims, losses, liabilities, damages, settlements, expenses and costs (including attorneys' fees and court costs) (the foregoing, collectively, "Claim(s)") against ZenoRadio which arise directly or indirectly out of or relate to (a) any breach (or claim or threat thereof that, if true, would be a breach) of this Agreement by Station, (b) any third party claim or threat thereof that the Station Media or Station's trademark or other intellectual property (and/or the exercise of any rights granted herein with respect thereto) infringe, misappropriate or violate any patent, copyright, trademark, trade secret, publicity, privacy or other proprietary or other rights of any third party, or are defamatory or obscene. ZenoRadio shall notify Station promptly of any Claim against ZenoRadio for which indemnification is sought; provided, however, that the failure to give such notice shall not relieve Station of Station's obligations hereunder except to the extent that Station was actually and materially prejudiced by such failure. ZenoRadio may, at its option and expense, participate and appear on an equal footing with Station in the defense of any Claim against ZenoRadio that is conducted by Station as set forth herein. Station may not settle any Claim against ZenoRadio without the prior written approval of ZenoRadio. Indemnification by ZenoRadio. ZenoRadio shall at its own expense indemnify and hold harmless, and at Station's request defend, Station and its affiliates, subsidiaries, successors and assigns (and its and their respective officers, directors, employees, sublicensees, customers and agents) from and against any and all Claims against Station which arise directly or indirectly out of or relate to (a) any breach (or claim or threat thereof that, if true, would be a breach) of this Agreement by ZenoRadio, (b) any third party claim or threat thereof that the ZenoRadio's trademark or other intellectual property (and/or the exercise of any rights granted herein with respect thereto) infringe, misappropriate or violate any patent, copyright, trademark, trade secret, publicity, privacy or other proprietary or other rights of any third party, or are defamatory or obscene. Station shall notify ZenoRadio promptly of any Claim against Station for which indemnification is sought; provided, however, that the failure to give such notice shall not relieve ZenoRadio of ZenoRadio's obligations hereunder except to the extent that ZenoRadio was actually and materially prejudiced by such failure. Station may, at its option and expense, participate and appear on an equal footing with ZenoRadio in the defense of any Claim against Station that is conducted by ZenoRadio as set forth herein. ZenoRadio may not settle any Claim against Station without the prior written approval of Station.
Station Warranties and Covenants. Station represents and warrants that (a) Station has the right and authority to enter into this Agreement and to grant to ZenoRadio the rights granted hereunder; (b) the Station Media, and Station trademarks provided by Station to ZenoRadio for use pursuant to this Agreement do not infringe upon or violate the intellectual property rights or other rights of any third party; (c) Station has not been charged or threatened with infringement or violation of any intellectual property right or other right of any person or entity in connection with the Station Media, or such Station trademarks; (d) the Station Media provided to ZenoRadio will not contain any program routine, device, or other undisclosed feature, including, without limitation, a time bomb, virus, software lock, drop dead device, malicious logic, worm, trojan horse, or trap door, that is designed to delete, disable, deactivate, interfere with, or otherwise harm ZenoRadio, or that is intended to provide access or produce modifications not authorized by ZenoRadio; (e) ZenoRadio's exercise of rights licensed to it under this Agreement will not violate the copyright, trademark, trade secret, privacy, publicity or other intellectual property or proprietary right of any person or entity, and will not violate any applicable law or regulation; (e) Station shall use commercially reasonable efforts to ensure the continued availability and quality of the Media Content; (f) Station complies with applicable broadcasting laws and has the legal and regulatory authority to broadcast its content through ZenoRadio without restriction.
ZenoRadio Warranties. ZenoRadio represents and warrants that ZenoRadio's execution and performance of this Agreement has been authorized and that ZenoRadio owns or has rights to use the technology necessary to perform the services described hereunder.
EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT ON THIRD PARTY RIGHTS. WITHOUT LIMITATION, ZENORADIO PROVIDES NO ASSURANCE AS TO THE CALL QUALITY ASSOCIATED WITH ITS SERVICE, THE TIMES OF AVAILABILITY OF THE SERVICE, THE FREQUENCY OF DOWNTIME, AND THE ABILITY TO ATTRACT USERS OR GENERATE REVENUES.
Notwithstanding any provision herein, either party nor any of its directors, shareholders, officers, consultants, agents, employees, suppliers or other representatives shall be liable for any indirect, special or consequential damages, or damages for loss of profits, business interruption, loss of goodwill, computer failure or malfunction or otherwise, arising from or relating to this Agreement. The foregoing limitation of liability and exclusion of certain damages shall apply regardless of the failure of essential purpose of any remedies available to either party.
Each Party may be given access to Confidential Information from the other Party in order to perform its obligations under this Agreement. A Party's Confidential Information shall not be deemed to include information that: (i) is or becomes publicly known other than through any act or omission of the receiving party; (ii) was in the other Party's lawful possession before the disclosure; (iii) is lawfully disclosed to the receiving Party by a third party not in breach of any confidentiality obligation without restriction on disclosure; (iv) is independently developed by the receiving Party, which independent development can be shown by written evidence; or (v) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body. Each Party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of this Agreement. This provision shall survive the termination of this Agreement for a period of three (3) years.
Severability. If any term or provision of this Agreement is determined to be illegal or unenforceable such provisions shall be stricken form this Agreement and such provision shall not affect the legality, enforceability or validity of the remainder of this Agreement.
Independent Contractor. The Parties acknowledge that this Agreement does not create an employment relationship nor partnership or joint venture but only that of independent contractors. As a consequence, (i) no Party shall have any authority to enter into contracts or agreements, or make any representations or commitments of any nature, on behalf of the other Party; (ii) all taxes and other surcharges that might be due and payable as a result of this Agreement shall be the sole responsibility of the Party on whom they are levied.
Force Majeure. Neither party shall be liable for any failure to perform due to (a) causes beyond its reasonable control; or (b) acts of God, acts of civil or military authority, acts of terror, fires, strikes, floods, epidemics, earthquakes, quarantine, restrictions, war, or riot.
Assignment. Neither Party shall at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement without the prior written consent of the other Party, provided that notwithstanding any provision herein, either Party may assign this Agreement in connection with the sale of substantially all of that Party's assets. Notwithstanding any provision herein, ZenoRadio shall be entitled to assign this Agreement to any entity controlled by, or under common control with, ZenoRadio.
Waivers. Any term or condition of this Agreement may be waived at any time by the party that is entitled to the benefit thereof, but no such waiver shall be effective unless expressly and unambiguously set forth in a written instrument duly executed by or on behalf of the party waiving such term or condition. No waiver by any party of any term or condition of this Agreement, in any one or more instances, shall be deemed to be or construed as a waiver of the same or any other term or condition of this Agreement on any future occasion Governing Law. This Agreement is to be construed in accordance with and governed by the internal laws of the State of New York without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal law of the State of New York to the rights and duties of the parties.
Notices. Notices and other communications provided for hereunder this Agreement shall be in writing and shall be considered delivered (i) when delivered by hand or upon confirmed receipt of a facsimile transmission, (ii) via email only if receipt is confirmed by email or otherwise, (iii) two (2) days after mailing, postage prepaid, by registered or certified mail, return receipt requested, to the below address or such other address as either party shall specify in a written notice to the other given in accordance with this Section.
Notice to ZenoRadio shall be sent to:
ZenoRadio, Inc. Attention: Support Address: 421 Seventh Avenue New York, NY 100011 USA Email: Stationsupport@zenoradio.com The Notice to Station shall be provided to ZenoRadio through the Website.
Entire Agreement. This Agreement constitutes the entire agreement between the parties regarding the subject matter set forth herein and supersedes all prior or contemporaneous understandings or agreements of the parties related thereto. This Agreement may only be amended in writing by both Parties, which may include a party's click through to agree to the terms of any amendment to this Agreement.