1. Services and Acceptable Use: Backbone Networks Corporation, a Massachusetts corporation located at 290 Turnpike Rd #5-321, Westborough, MA 01581 (“Backbone”) will provide Internet broadcasting, automation, phone system, remote co-host and related services (“Services”) on your behalf (“You”). You will supply certain content, programming and events (the “Content”), including without limitation recordings of past podcasts and live streams of its broadcasts to be broadcast on the Internet or for redistribution to terrestrial radio stations. During the term of this Agreement (the “Agreement”), You grant to Backbone the right to transmit, download or stream the Content (“Webcasting, “Podcasting” and “Syndicating”). You also grant Backbone the right to act on your behalf to list your Internet radio station with third party distribution partners.

2. Ownership of Content and Intellectual Property Rights:

(a) You and your suppliers retain all right, title and interest in and to the Content worldwide, including, but not limited to, ownership of all patents, copyrights, trademarks, service marks, and other intellectual property rights therein, but subject to any limitations that exist with respect to material (e.g., musical recordings) that are copyrighted by third parties or otherwise protected which is incorporated into the Content.

(b) Backbone and its suppliers retain all right, title and interest in and to all materials incorporated into the Backbone Services and in and to the technology, software, and hardware used in connection with the delivery of Services under this Agreement worldwide, including, but not limited to, ownership of all patents, copyrights, trademarks, service marks, and look and feel and other intellectual property rights therein.

(c) You and Backbone grant to the other party a non-exclusive, limited license to use its patents, copyrights, trademarks, service marks, trademarks, trade names, call signs, names, logos, or slogans necessary to fulfill the rights and obligations under this Agreement. Upon the expiration or termination of this Agreement, each party shall cease using the patents, copyrights, trademarks, service marks, trademarks, trade names, call signs, names, logos, or slogans owned or used by the other party except (i) as the parties may agree in writing, or (ii) to the extent permitted by applicable law. Neither party shall take any action inconsistent with the other’s rights hereunder.

(d) Backbone will treat Content supplied by You as intellectual property under the Digital Millennium Copyright Act of 1998 (“DMCA”). The DMCA provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. Backbone will promptly process and investigate notices of alleged infringement and will take appropriate actions under the DMCA and other applicable intellectual property laws with respect to any alleged or actual infringement by You and your suppliers.

3. Term and Termination of Agreement: This License is effective until terminated. Either party shall have the right to terminate this Agreement upon thirty (30) days prior written notice for any reason whatsoever. You shall be entitled to a prorata refund in the event of termination not related to your default. Either party shall have the right to terminate this License immediately by delivery of written notice to the defaulting party if the other party fails to comply with any term(s) of this License.

Upon the termination of this License, you shall cease all use of the Backbone Services and destroy all copies, full or partial, of the Backbone software.

All obligations and requirements set forth in this Agreement that by their terms extend beyond the final day of performance under this Agreement shall survive the termination or expiration of this Agreement.

4. Warranties; Representations; Indemnities: The Backbone Services are intended for use only with properly licensed media, content, and content creation tools. The Services are provided to you only for reproduction of Content you are authorized or legally permitted to reproduce, webcast or podcast.

(a) You warrant that you own and/or have obtained the right to distribute and make available to Backbone for Webcasting, Podcasting and Syndicating the Content, and further warrant that you have taken all necessary steps to ensure that you are in compliance with all applicable licensing requirements (e.g., SESAC, ASCAP, BMI, RIAA / SOUND EXCHANGE) or governmental (including federal, state, and local) laws, rules and regulations, and have paid or are current with all fees and expenses associated with such requirements, laws, rules and regulations.

(b) You agree that Backbone shall bear no responsibility for the Content, except to the extent Content is altered by Backbone. To the extent permissible by law and subject to available appropriations or limits of liability insurance, You shall indemnify and hold Backbone harmless from any and all claims (including claims from governmental entities seeking to impose penal sanctions) relating to such use by You.

(c) Except as specified in this Agreement, neither party makes any warranty in connection with the subject matter of this Agreement and hereby disclaims any and all implied warranties, including all implied warranties of merchantability and fitness for a particular purpose regarding such subject matter.

(d) To the extent permissible and subject to available appropriations or limits of liability insurance, by law both Parties will indemnify, defend and hold harmless its affiliates, officers, directors, members, partners, employees, consultants and agents from any and all third party claims, liability, damages and/or costs (including, but not limited to, attorneys’ fees) arising from: (i) its breach of any warranty, representation or covenant set forth in this Agreement; (ii) any claim that its conduct or the Content infringes or violates any third party’s copyright, patent, trade secret, trademark, right of publicity or right of privacy or contains any defamatory content, or otherwise violates any third party’s other rights; (iii) any claim that its conduct or the Content violates any state, federal or local law, regulation or statute; or (iv) any claim that its conduct or the Content violates any foreign law, regulation or statute that either party knew or reasonably should have known constituted such a violation.

5. Limitation Of Liability: Each party’s sole remedy is a repair, a replacement or a refund. In no event will either party be liable to the other for any special, incidental, consequential or punitive damages, whether based on breach of contract, tort (including negligence) or any other legal theory, whether or not that party has been advised of the possibility of such damage.

6. Assignment: Neither party may assign this Agreement, in whole or in part, without the other party’s written consent, except that no such consent will be required in connection with a merger, reorganization or sale of all, or substantially all, of such party’s assets (or, with respect to your organization, the sale of all or substantially all of its interest in any radio station covered by this Agreement), and in the event of any such transaction, the acquiring entity shall assume the rights and obligations set forth in this Agreement. Any attempt to assign this Agreement other than as permitted above will be null and void.

7. Confidentiality: Each party agrees that it will not disclose to any third party Information deemed Confidential by the other party except to the extent required by law or in connection with its regular business activities.

8. Miscellaneous Provisions:

(a) Entire Agreement. This Agreement is the complete and exclusive agreement between the Parties with respect to the subject matter herein, superseding any prior agreements and communications (both written and oral) regarding such subject matter. It binds the Parties and their respective successors and assigns. This Agreement may only be modified, or any rights under it waived, by a written document executed by both Parties.

(b) Equitable Remedies; Dispute Resolution. In the event that disputes between the Parties arise from or concern the subject matter of this Agreement, the Parties agree to engage in mediation as a first step in resolving their disputes, and if such is not successful, then Parties are free to move on to other option(s) to resolve their dispute, which may include litigation. However, with respect to any dispute arising from any breach of either Parties’ obligations concerning Confidential Information, trademarks, service marks, and/or trade names that would result in irreparable injury for which there is no adequate remedy at law, the aggrieved party shall be entitled to seek equitable relief in addition to its other available legal remedies in a court of competent jurisdiction.

(c) No Agency. The Parties are independent contractors and will have no power or authority to assume or create any obligation or responsibility on behalf of each other. This Agreement will not be construed to create or imply any partnership, agency or joint venture.

(d) Governing Law. This Agreement and the legal relations between the Parties will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to the conflicts of law principles.

(e) Notices. All notices required to be given under this Agreement must be in writing and will be deemed to have been duly given when sent by fax (with written confirmation of receipt), provided a copy is also sent by first class mail, or when received by the addressee, if sent by a nationally recognized overnight delivery service, in each case to the appropriate addresses and fax number set forth above (or to such other address and fax number as a party may designate by notice to the other party).

(f) Severability. In the event that any of the provisions of this Agreement are held to be unenforceable by a court or arbitrator, the remaining portions of the Agreement will remain in full force and effect.

Last updated September 25, 2015