Last Updated : Tuesday, January 9, 2018
1. GENERAL TERMS.
Welcome to Shoutcast website !
The following definitions apply in this Agreement:
1. “Affiliate” means any entity that, directly or indirectly, controls, is controlled by, or is under common control with a Party, including any entity in which a (i) Party holds at least a fifty percent (50%) equity interest or (ii) which holds at least a fifty percent (50%) equity interest in Shoutcast.
2. “Shoutcast API” means the specifications, code samples, header files, libraries, and applications related to the Shoutcast Directory provided to You by Shoutcast and any changes, alterations, corrections or enhancements made thereto at any time by Shoutcast.
3. “Broadcaster” means an individual, entity or other third party that creates and makes available a radio station on Shoutcast website.
4. “Confidential Information” means any information relating to or disclosed in the course of this Agreement, including, but not limited to, the material terms of this Agreement, information about the Shoutcast API, the Documentation, all Directory Information, Shoutcast Users, technical processes and formulas, source code, product designs, sales, cost and other unpublished financial information, product and business plans, projections and marketing data, the Shoutcast Materials, and those techniques, algorithms, and processes contained therein which have been developed, acquired, or licensed by Shoutcast, or any modification or extraction thereof, which is clearly marked “Confidential” at the time of disclosure or, if orally or visually disclosed, is identified as confidential at the time of disclosure and confirmed in writing marked “Confidential” to be issued to the receiving party within thirty (30) days after the date of such disclosure, or is of such nature that it should be reasonably understood by the receiving Party to be Confidential Information. Confidential Information shall not include information (2.1) already lawfully known to, or independently developed by the receiving Party without reference to the Confidential Information, (2.2) disclosed in published materials, (2.3) generally known to the public, (2.4) lawfully obtained from any third party, or (2.5) required or reasonably advised to be disclosed by law.
5. “Radio Stations”: means each individual stream of Content accessible from Shoutcast. The Radio Stations are listed separately in the Shoutcast Directory.
6. “Content” means text, images, video, audio (including, without limitation, music used in time relation with text, images, or video), and other data, products, services, advertisements, promotions, URLs, keywords and other navigational elements, links, pointers, technology and software.
7. “Directory Information” means the formatted data of the Shoutcast Directory returned by the Shoutcast API to the Integrated Product in response to a Query. The Directory Information may include data representing links to music streams and other information, which may include music stream titles, URLs where music streams are located, and the genre of music contained in such streams.
8. “Documentation” means Shoutcast’s documentation for the Shoutcast API as may be made available to You, and as modified by Shoutcast in its sole discretion from time to time.
9. “Integrated Product” means a version of Your Product into which the Shoutcast API is integrated, whether in “works like,” “works like-looks like,” prototype, intermediate form, final form, or other form.
10. “Look and Feel” means the elements of graphics, design, organization, presentation, layout, user interface, navigation, trade dress and stylistic convention (including the digital implementations thereof) which are associated with Shoutcast.
11. “Marks” means trademarks, trade names, service marks or logos owned by a Party. “Shoutcast Marks” refers to Marks owned by Shoutcast and “Your Marks” refers to Marks owned by You.
12. “Shoutcast User” or “End User” means any user who accesses Shoutcast Directory or Shoutcast website through the Integrated Product.
13. “Original Equipment Manufacturers or OEMs” means companies that sell products or services directly to End users.
14. “Product” means the product, services, sites or applications designed, manufactured and sold or made available to the public by You either through 1). direct sale to end users 2). via OEMs radio stations as part of a bundled offering.
15. “Query” means a data request submitted from the Integrated Product to the Shoutcast API.
16. “Reseller” means when You do not have a consumer facing product (for example You are a chip maker) and You create Integrated Products which in turn are incorporated into the products and services of OEMs (such as radio and TV manufacturers) which are then made publically available to end users (including, but not limited to Shoutcast Users).
17. “Results Display” means the graphical display created by You of the Directory Information.
18. "Site" means any website located at a URL address on which You, or OEMs place any code that calls or accesses the Shoutcast API that renders the Directory Information.
19. “SHOUTCAST Properties” means the Shoutcast Directory provided by Shoutcast, including the Directory Information, the Look and Feel and the Shoutcast website, Shoutcast’s properties, and other services available at www.shoutcast.com.
20. “Shoutcast Materials” means the Shoutcast API, the Directory Information, Documentation or any other materials provided by Shoutcast under this Agreement.
21. “Territory” means collectively country, geographic territory and/or government Territory.
3. LICENSE GRANT.
1. Shoutcast grants to You a non-exclusive, non-transferable, non-sub-licensable, revocable, royalty free, license during the term of this Agreement (i) to integrate the Shoutcast API into Your Product to create an Integrated Product capable of accessing the Directory Information in accordance with the Shoutcast API and Documentation, (ii) to use, reproduce and distribute the Shoutcast API only in the Integrated Product directly or via OEMs when You are acting in the capacity of a Reseller and (iii) to use the Documentation for the sole purpose of such integration.
2. You acknowledge that You obtain no intellectual property rights or licenses by this Agreement except for the limited licenses expressly granted.
3. You grant Shoutcast a worldwide, perpetual, royalty-free, fully paid up license to use, display, edit, or otherwise promote Your Marks and/or the Integrated Product on Shoutcast.
4. Shoutcast may impose additional usage rules that supplement this Agreement for specific APIs, which will be provided with the applicable Shoutcast API. Such usage rules for the APIs that You elect to use will become part of this Agreement.
5. Shoutcast may modify the terms of this Agreement at any time in its discretion. Material changes to this Agreement shall take effect thirty (30) days after Shoutcast provides notice of such changes. Your ongoing use and distribution of Shoutcast Materials after the changes take effect signifies your electronic consent to the new terms of the Agreement.
4. LICENSE RESTRICTIONS.
1. You shall enable the Integrated Product only to playback Content accessible through the Directory Information, and You shall not enable the Integrated Product to record Content available through the Directory Information. Nothing herein shall be deemed to grant You the right to alter, download, or record Content available through the Directory Information or Shoutcast Properties, or to implement any functionality that contradict the anti-circumvention provisions of the Belgian Law on Copyrights, the Digital Millennium Copyright Act (“DMCA”) and applicable laws within the Territories in which You will distribute the Integrated Products with respect to the Content available through the Directory Information or Shoutcast Properties.
2. You hereby acknowledge that (i) except where expressly identified, Shoutcast is not the Broadcaster of any Content available through the Directory Information or Shoutcast Materials ; and (ii) Broadcasters of Content available through the Directory Information or Shoutcast Materials are solely responsible for all Content included in their radio Station, including, without limitation, advertisements contained therein.
4. When sold or distributed to End Users, the Integrated Product shall not (a) contain, be bundled with, or otherwise enable any viruses, Trojan horses, trap doors, back doors, worms, time bombs, cancelbots, adware, spyware or other computer programming routines that will damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (b) contain any material, product or services that violate or encourage conduct that would violate any criminal laws, any other laws, or any third party rights; or (c) incorporate any Publically Available Software, in whole or in part, in a manner that may subject Shoutcast or the Shoutcast Materials, in whole or in part, to all or part of the license obligations of any Publically Available Software. As used herein, the term "Publicly Available Software" means any software that contains, or is derived in any manner (in whole or in part) from, any software that is distributed as free software, open source software or similar licensing or distribution models; and that requires as a condition of use, modification or distribution that such software or other software incorporated into, derived from or distributed with such software: (1) be disclosed or distributed in source code form; (2) be licensed for the purpose of making derivative works; or (3) be redistributable at no charge.
5. You shall not, and shall not permit a third party to (a) alter, copy or reproduce any part of Shoutcast Properties or the Shoutcast Materials; (b) reverse engineer, modify, disassemble, decompile, or otherwise attempt to derive source code; (c) modify or create derivative works from Shoutcast Properties or the Shoutcast Materials; or (d) copy, duplicate, or store any Directory Information or data otherwise retrieved from or derived from Shoutcast Properties or the Shoutcast Materials.
6. Your Site or Integrated Product will not contain Prohibited Solicitations. As used herein, “Prohibited Solicitations” means: (1) any advertisement that is targeted to an End User based on information gathered by tracking said End User’s web surfing habits across multiple Internet domains with software; (2) any advertisement that is displayed to an End User by means of device-resident software application, and which is not associated with or authorized by the publisher of the Internet domain being visited by the End User.
7. You understand and agree that Shoutcast Directory is made available to End Users free of charge. You may not charge End Users any fees (of any kind) for access to and/or use of Shoutcast Directory (“Fee Restriction”). For clarity, the Fee Restriction does not prevent you from charging End Users a fee for the Integrated Product so long as the fee for the Integrated Product does not contain a fee and/or charge of any kind for the Shoutcast Directory component of the Integrated Product. You understand and agree that Your breach of this Section 4.7 shall be a material breach of this Agreement.
8. Shoutcast Properties, the APIs and Shoutcast Materials are controlled and operated within BELGIUM. Although Shoutcast Properties are accessible from outside of BELGIUM, you understand and agree that Shoutcast Properties, the APIs and Shoutcast Materials (a) have not been designed or customized for distribution for any specific Territory, (b) are not intended for distribution to, or use by, any person or entity in any Territory where such distribution or use would be contrary to local law or regulation, (c) may not be appropriate or available for access or use in any particular Territory, and (d) are provided without any Content filtering or rating mechanism. Shoutcast has not assured -- and has no obligation to assure -- that Shoutcast Properties and Content offered from the Shoutcast Directory comply with applicable local laws and regulations within the Territories in which you elect to distribute the Integrated Products. You are solely responsible for complying with any local laws triggered by your targeted distribution of Your Integrated Products within any Territory. You shall not distribute Shoutcast Properties where prohibited by any Territory, or in any Territory that requires Content filtering or Content rating mechanisms. Your distribution of Shoutcast Properties within any specific Territory is entirely at Your own risk.
9. You must register with Shoutcast and provide accurate identification, contact, and other information required as part of the registration process. You may create a single account only. You may not create any script or other automated tool that attempts to create multiple developer accounts. We may in our sole discretion reject any registration for any reason.
10. Shoutcast may require that you obtain a user identification ("Developer ID") to use the certain APIs and Shoutcast Materials. Shoutcast may, in its sole discretion, issue to You a Developer ID that You may be permitted to use for a variety of APIs and Shoutcast Materials, or Shoutcast may require that You obtain a separate Developer ID for a specific application or material. Your Developer ID(s) will be uniquely associated with all versions, upgrades and updates of the Integrated Products created by You. Your Developer Product must at all times incorporate the applicable Developer ID in compliance with this Agreement and any additional usage rules that may apply to a specific API. You may not obtain a Developer ID under false pretences, including without limitation, “spoofing” an IP address or misrepresenting any URLs that will incorporate an API. Shoutcast has the right at all times to block attempts to access our networks with an invalid or revoked Developer ID or if an Integrated Product associated with a Developer ID exceeds the usage limits for a specific API. Shoutcast, in its sole discretion, shall determine the number of unique Developer IDs that Shoutcast provides to You. You may not share, loan, provide, transfer or sublicense your Developer ID to any other person or party. Shoutcast has the right, in its sole discretion and without limiting our other legal remedies, to terminate any Developer ID and/or to prevent access to Its network. In addition to any other restrictions contained in this Agreement or in any applicable usage rule, You may not register for more than one Developer ID for each API. You may not use any additional Developer ID issued by Shoutcast to You to circumvent any usage limits. You are responsible for (i) all activity under your Developer IDs and Developer Products, (ii) keeping your Developer ID confidential and (iii) notifying Shoutcast immediately if you believe your Developer ID has been misappropriated. You agree to implement any feasible procedure that is or may become available to secure your Developer IDs from misuse by others. You will work with Shoutcast immediately to correct any security deficiencies that may have been caused as a result of the misappropriation by any party of your Developer ID.
11. You receive no rights and agree that it will not itself, nor allow any OEM, agent or other third party to encumber or create any lien or security interest on Shoutcast Properties or the Shoutcast Materials, or take any action that would cause, or fail to take any action that would prevent, Shoutcast Properties or the Shoutcast Materials to be placed in the public domain. Except as expressly permitted herein or by applicable law, You shall not, and shall not permit any OEM, or other person to, re-configure, modify, translate, decompile, reverse engineer, disassemble, or otherwise determine or attempt to determine source code from Shoutcast Properties or the Shoutcast Materials or to create any derivative works based upon Shoutcast Properties or the Shoutcast Materials. If You or any of your partner fails to comply with this Section 4.11, Shoutcast may immediately (in addition to all other remedies Shoutcast may have under this Agreement) revoke all licenses granted hereunder.
12. You shall ensure that You enter into written agreements with each OEM for the distribution of Shoutcast Properties or the Shoutcast Materials. You shall ensure that each OEM agreement is no less protective than the terms and conditions of this Agreement. You shall ensure that Shoutcast Properties or the Shoutcast Materials distributed (as part of an Integrated Product) must be distributed with the EULA that is provided by Shoutcast. You shall, and shall cause its OEMs to comply with all then-current applicable laws, regulations and other legal requirements in your performance of this Agreement, including without limitation, all applicable export laws, rules and regulations of any agency of the European Union or other applicable regulations. You shall ensure the compliance with all applicable laws, rules and regulations to preclude the acquisition of unlimited rights in Shoutcast Properties or the Shoutcast Materials to any governmental agency, body, or entity of any kind.
13. You understand and agree that it is liable under the terms of this Agreement for the acts and omissions of each and every OEM.
5. ASSISTANCE; SERVICE; NETWORK LIABILITY, SECURITY AND DISRUPTIONS.
1. Shoutcast reserves the right to update or enhance Shoutcast Properties and/or the Shoutcast Materials, including but not limited to, the Shoutcast API, the Directory Information, permitted API calls, and the SHOUTCAST website (each a “Modification”) at any time (without notice), in Shoutcast’s sole discretion.
2. In the event that, and for so long as, Shoutcast determines that any part of the Integrated Product or the operation thereof is in material violation of this Agreement or otherwise exposes Shoutcast or Shoutcast Properties to liability, disruption or security risks (“Disruption”), Shoutcast may notify You of such Disruptions and request that You remedy such Disruptions. Shoutcast shall have the right to immediately suspend access to Shoutcast Properties by all or any portion of the Integrated Product causing such Disruptions (and only to the extent necessary to alleviate such Disruptions) or require You to do so.
3. Shoutcast's servers record information when the APIs and/or Developer IDs call or invoke Shoutcast Materials. This information may include, without limitation, the Developer ID and access times and dates. Shoutcast may use this information to promote, operate, and improve Shoutcast Properties.
6. BRANDING AND PROMOTION REQUIREMENTS.
All uses of Shoutcast Marks by You shall conform to the branding guidelines set forth in this Section 6 below (or as otherwise be updated by Shoutcast). You shall provide to Shoutcast the following branding and promotion of SHOUTCAST Properties:
You shall ensure that the use of Shoutcast Marks by You comply in all material respects with Shoutcast branding guidelines set forth
1. You must have a publicly available website.
2. You shall maintain information regarding Your Integrated Products.
3. When available and requested by Shoutcast, You must use a Developer ID in all Queries. When available, refer to the Documentation with respect to how to establish and use a Developer ID.
4. You shall provide a SHOUTCAST logo or icon as provided to You by Shoutcast in the URL link here (http://marketing.shoutcast.com/guidelines/shoutcast.pdf) in the user interface of the Integrated Product, which logo or icon shall be a link directing a web browser on the Integrated Product to the SHOUTCAST web page at www.shoutcast.com or any successor URL. Placement must be approved by You and Shoutcast.
5. You shall provide promotion of SHOUTCAST on the exterior packaging (if applicable) of the Integrated Product.
6. You agree to promote the Shoutcast on your website and in the documentation of the Integrated Product subject to placement agreed to by You and Shoutcast in writing.
7. You shall call out Shoutcast Properties specifically in any marketing materials that call out Internet or online radio. You agree, subject to Shoutcast’s prior written approval, to place and feature the Shoutcast logo on Your main product web page, where one exists.
8. You shall provide via e-mail a 92x72px logo and 400 characters description of Your Integrated Product (“Integrated Product Description”) which Shoutcast, in its sole discretion, may feature on the Shoutcast website API partner page on www.shoutcast.com.
9. You shall immediately provide Shoutcast a minimum of two samples of the Integrated Product upon Your integration of the Shoutcast API into Your Product. You agree to send, at your own expense, the samples to the following address: Attention: Shoutcast SPRL, 55K Boulevard International, B-1070 Brussels, Belgium.
10. All marketing materials must be approved by Shoutcast prior to release.
11. The following SHOUTCAST description shall be included in all promotional areas on Your website:
“Shoutcast provides the ultimate suite of tools to create, host and broadcast a radio station across the Internet or any other IP-based network (Office LANs, college campuses, etc.), as well as the largest worldwide online radio stations directory, with over 50,000 music of any genre, talk, sports and community radio stations from the all around the world”.
12. You shall ensure that each OEM complies with Sections 6.1-6.11 of this Agreement above.
13. You shall provide the contact information for each OEM and use Your best efforts to assist in introductions and communications between Shoutcast and each OEM.
14. You shall provide monthly reports to the Shoutcast point of contact identified by Shoutcast which details OEMs under contract to distribute the Shoutcast API pursuant to the terms of this Agreement. The report shall detail the OEMs signed up in the prior month.
7. TRADEMARK LICENSE.
1. During the Term of this Agreement, in performing its obligations under and subject to the terms and conditions of this Agreement (including, but not limited to, Article 6 of this Agreement), You will be entitled to use the Shoutcast Marks provided by Shoutcast; and Shoutcast will be entitled to use Your Marks provide by You to Shoutcast; provided that each Party: (i) does not create a unitary composite mark involving the Marks of the other Party without the prior written approval of the owning Party; (ii) displays symbols and notices clearly and sufficiently indicating the trademark status and ownership of the Marks in accordance with applicable trademark law and practice; and (iii) complies with the guidelines separately provided by each Party. Shoutcast branding guidelines are available on the following URL here: http://marketing.shoutcast.com/guidelines/shoutcast.pdf.
2. Each Party acknowledges the ownership right of the other party in its Marks and agrees that all use of the other Party’s Marks will inure to the benefit, and be on behalf, of the owning Party. Each Party acknowledges that its utilization of the other Party’s Marks will not create in it, nor will it represent it has, any right, title, or interest in or to such Marks other than the licenses expressly granted herein.
3. Each Party agrees not to do anything contesting or impairing the trademark rights of the other Party in its Marks. Each Party agrees that the nature and quality of its products and services supplied in connection with the other Party’s Marks will conform to quality standards set by the owning Party for use of its Marks. You agree to supply Shoutcast, upon request, with a commercially reasonable number of samples of any Integrated Product publicly disseminated by You which utilize the Shoutcast Marks within a commercially reasonable period of time.
4. Each Party will comply with all applicable laws, regulations, and customs and obtain any required government approvals pertaining to use of the other Party’s Marks. Each Party agrees to promptly notify the other Party of any unauthorized use of the other Party’s Marks of which it has actual knowledge. Each Party will have the sole right and discretion to bring proceedings alleging infringement of its Marks or unfair competition related thereto; provided, however, that each Party agrees to provide the other Party with its reasonable cooperation and assistance with respect to any such infringement proceedings.
5. Unless expressly provided in this Agreement or otherwise agreed in writing between the Parties, no license or right with respect to one Party’s trade names, trademarks or service marks shall be granted by one Party to the other Party.
You shall comply in all material respects with the branding guidelines set forth in the following URL: http://marketing.shoutcast.com/guidelines/shoutcast.pdf. In the event of a change in the branding guidelines, You shall have a reasonable period to comply with the changes or shall have the right to terminate this Agreement upon notice to Shoutcast.
8.PROPRIETARY RIGHTS AND CONFIDENTIALITY
1. You shall keep confidential and shall not disclose to any third party (other than the employees of such Party who have a need-to-know) nor use, except for the purposes of this Agreement, any and all Confidential Information of Shoutcast. You shall take all reasonable steps to protect Confidential Information of Shoutcast. Shoutcast shall retain all rights, title and interest in Shoutcast Properties, the Shoutcast Materials, Shoutcast Marks, and any underlying database information at all times. You agree that Shoutcast Materials, notably the Shoutcast API and Documentation and any database information, and those techniques, algorithms, and processes contained therein which have been developed, acquired or licensed by Shoutcast or any modification or extraction thereof, are proprietary to Shoutcast.
2. You acknowledge and agree not to contest that Shoutcast and its licensors are the sole and exclusive owners of all rights, title, and interest, including all trademarks, copyrights, patents, trade names, trade secrets, and other intellectual property rights in and to Shoutcast Properties, the Shoutcast Materials and the Shoutcast Marks. You agree that all copyright, trademark, and other proprietary notices which are embedded in Shoutcast Properties and/or the Shoutcast Materials shall remain as embedded, in the same manner as embedded by Shoutcast, in each and every copy of Shoutcast Properties and/or the Shoutcast Materials strictly made in the limited context of this Agreement.
3. Except as otherwise set forth in this Agreement, You shall not, and shall not permit a third party to:
(a) alter, copy or reproduce any part of Shoutcast Properties and/or the Shoutcast Materials;
(b) reverse engineer, modify, disassemble, decompile, or otherwise attempt to derive source code of Shoutcast Properties and/or the Shoutcast Materials;
(c) modify or create derivative works from Shoutcast Properties and/or the Shoutcast Materials;
(d) or copy, duplicate, or store any Directory Information or data otherwise retrieved from or derived from Shoutcast Properties and/or the Shoutcast Materials.
4. As between You and Shoutcast, Shoutcast owns all right, title, and interest in and to SHOUTCAST Properties (including the Look and Feel of Shoutcast website), Shoutcast Marks and the Shoutcast Materials. Nothing herein shall be deemed to grant any rights to You other than those rights specifically granted in this Agreement.
9. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS.
You warrant to Shoutcast that: (a) You have the legal capacity to enter into this Agreement; (b) all information provided by You to Shoutcast in connection with Your registration for and use of Shoutcast Properties or Shoutcast Materials is true and accurate; and (c) that Your use of Shoutcast Properties, the Shoutcast Marks, the Shoutcast Materials, and Your Integrated Product, the operation thereof, any other products, services or information provided by You, and any updates, upgrades and modifications thereto: (i) will not be used in any commercially unreasonable manner or shall not be intentionally used by You in a manner that would disparage or discredit Shoutcast ; (ii) will not infringe any intellectual property rights of any third party, including without limitation, any right of privacy, publicity, copyright, trademark, or patent; (iii) will comply with all applicable laws, rules and regulations, including without limitation, consumer protection, data security, and privacy laws and (iv) You will warrant that your Integrated Product of a high quality and that the Integrated Product and Your website promoting the Integrated Product will not contain Prohibited Solicitations. As used herein, “Prohibited Solicitations" means: (1) any advertisement that is targeted to an End User based on information gathered by tracking said End User's web surfing habits across multiple Internet domains with software; (2) any advertisement that is displayed to an End User by means of device-resident software application, and which is not associated with or authorized by the publisher of the Internet domain being visited by the End User.
Further, You will ensure that You possess all authorizations, approvals, consents, licenses, permits, certificates and other rights and permissions necessary to provide Your Developer Application and/or perform Your obligations hereunder.
10. Shoutcast'S DISCLAIMER OF WARRANTY; “AS IS”
1. Shoutcast Properties AND THE Shoutcast MATERIALS ARE PROVIDED ON AN “AS IS” AND “WITH ALL FAULTS” BASIS AND NO WARRANTY IS PROVIDED BY Shoutcast TO YOU REGARDING Shoutcast Properties AND THE Shoutcast MATERIALS, INCLUDING, BUT NOT LIMITED TO THE SDK, DOCUMENTATION, Shoutcast API OR ANY OTHER MATERIAL PROVIDED BY Shoutcast HEREUNDER. Shoutcast EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY AND ALL WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. Shoutcast MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE OPERATION OF Shoutcast Properties AND THE SHOUTCAST MATERIALS WILL BE UNINTERRUPTED OR ERROR-FREE.
2. Shoutcast makes no representations, warranties or covenants with respect to the Content, the Directory Information, stability, availability, DMCA compliance or compliance with any anti-piracy technology laws or regulations that may apply in an applicable Territory, or other rights in or to the Content available on or through Shoutcast Properties. All Content available through Shoutcast Properties is provided “AS IS” and “WITH ALL FAULTS”. YOU HEREBY ACKNOWLEDGE THAT A) BROADCASTERS (AND NOT Shoutcast) ARE the Content Providers and are RESPONSIBLE FOR OBTAINING ALL NECESSARY RIGHTS, PERMISSIONS, LICENSES, APPLICABLE TAXES, CERTIFICATIONS AND CLEARANCES (notably music licensing) WITH RESPECT TO THE CONTENT OF THEIR INDIVIDUAL RADIO STATION, B) BROADCASTERS (AND NOT Shoutcast) ARE SOLELY RESPONSIBLE FOR ENSURING THAT BROADCASTERS’ CONTENT COMPLIES WITH ALL APPLICABLE LAWS AND REGULATIONS, C) BROADCASTERS (AND NOT Shoutcast) ARE SOLELY RESPONSIBLE FOR ALL APPLICABLE ROYALTIES TO THE COPYRIGHTS AND RELATED RIGHTS OWNERS WITH RESPECT TO THE CONTENT CONTAINED IN THEIR INDIVIDUAL RADIO STATION(S), AND D) Shoutcast SHALL HAVE NO RESPONSIBILITY OR LIABILITY TO YOU OR ANY THIRD PARTY TO OBTAIN SUCH RIGHTS, PERMISSIONS, CLEARANCES OR ROYALTY PAYMENTS AND SHALL HAVE NO RESPONSIBILITY OR LIABILITY TO YOU, USERS OF THE INTEGRATED PRODUCT, OR ANY THIRD PARTY FOR THE FAILURE OF SUCH BROADCASTERS TO OBTAIN SUCH RIGHTS, PERMISSIONS, CLEARANCES OR PAY ANY APPLICABLE ROYALTIES.
11. LIMITATION OF LIABILITY.
1. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.
2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, You agree to hold harmless and indemnify, at Shoutcast’s request, Shoutcast and its Affiliates, employees, officers, Shoutcast’s licensors and agents and End Users and other suppliers and/or distributors (the “Shoutcast Indemnified Parties”) from and against any claim, losses, damages, expenses and costs (including attorney’s fees and costs) arising from or in any way related to or arising out of (a) Your breach of any provision under this Agreement or; (b) Your Integrated Product; (c) The Integrated Product Description; (d) an infringement or misappropriation of copyright, patent, trade secret, trademark, or other intellectual property rights of the Integrated Product ; (e) Your USE OF OR YOUR INABILITY TO USE Shoutcast PROPERTIES OR THE Shoutcast MATERIALS or Shoutcast MARKS; (f) all acts and omissions of the OEMs; (g) Your Marks, AND shall pay to Shoutcast all liability, loss, damages, costs and expenses incurred by Shoutcast indemnified Parties in connection with any such third party claim, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, LOST PROFITS, LOSS OF DATA, COMPUTER FAILURE OR MALFUNCTION. Shoutcast will give You prompt notice of any such claim made against it, and You and Shoutcast will cooperate in the defense of any such claim, suit or proceeding, including appeals, negotiations and any settlement or compromise thereof, provided that Shoutcast must approve the terms of any settlement or compromise, and such approval will not be unreasonably withheld.
3. IN ADDITION, THE MAXIMUM AGGREGATE LIABILITY OF Shoutcast FOR ANY CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED ONE HUNDRED EUROS (EUR 100,00). Shoutcast API is PROVIDED WITHOUT CHARGE AND THE PARTIES AGREE THAT THE FOREGOING LIMITATIONS REPRESENT A REASONABLE ALLOCATION OF RISK UNDER THIS AGREEMENT.
The disclaimer of warranty and limitation of damages set forth above are essential elements of the bargain between Shoutcast and You. You agree that Shoutcast would not be able to provide You with the use of its Shoutcast Materials for free without such limitations.
13. TERM AND TERMINATION.
This Agreement commences upon the date You respond “I agree” to the terms and conditions of this Agreement or otherwise You commence using Shoutcast Properties or Shoutcast Materials and will continue in force thereafter, unless terminated as provided herein (the "Term"). Shoutcast (without incurring liability of any kind to You, or any third party) may change, suspend, or discontinue all or any aspect of Shoutcast Properties, Shoutcast Marks, or the Shoutcast Materials, at any time, and may terminate this Agreement or Your use of Shoutcast Properties, Shoutcast Marks, or the Shoutcast Materials (in whole or in part) at any time, including but no limited to, prior to or after Your development and/or deployment of the Integrated Product(s), without notice, for no reason or for any reason, including, but not limited to, Your breach of any condition hereunder. You may terminate this Agreement by i) providing thirty (30) days notice to Shoutcast in accordance with the terms and conditions of this Agreement. Once the Agreement is terminated by a Party, You will remove any Shoutcast Marks authorized hereunder from the Integrated Product and cease the use of Shoutcast Properties or Shoutcast Materials, including without limitation by removing any and all code from the Integrated Product enabling Your use of Shoutcast Properties and Shoutcast Materials. You agree that once the Agreement is terminated, You will not use Shoutcast Properties, Shoutcast Marks, or Shoutcast Materials anymore.
14. IMPORT/EXPORT CONTROL.
You agree to fully comply with all export and import laws, regulations, rules and orders of the European Union or any foreign government agency or authority, and not to directly or indirectly export, re-export, transfer, or release the Shoutcast Materials, any other commodities, or technology received from Shoutcast, or any direct product thereof, for any proscribed end-use, or to any proscribed country, entity or person (wherever located), without proper authorization from the European Union or foreign government. You further agree to assume responsibility for and bear all expenses relating to Your compliance with the described laws, regulations, rules and orders, and obtaining all necessary authorizations and clearances.
15. HIGH-RISK ACTIVITIES.
Shoutcast are not fault-tolerant and are not designed, manufactured or intended for use in environments in which their failure could lead directly to death, personal injury, or severe physical or environmental damage, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems ("High Risk Activities"). ACCORDINGLY, Shoutcast AND ITS LICENSORS SPECIFICALLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES. YOU AGREE THAT THE Shoutcast Indemnified Parties WILL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES ARISING FROM THE USE OF Shoutcast Properties or Shoutcast Materials.
16. ELECTRONIC SIGNATURE AND ELECTRONIC NOTICES.
You agree to transact with us electronically, and that Your act of agreeing to the terms of this Agreement by submitting your details information and clicking "I Agree" has the same legal force and effect as a written agreement with Your written signature and satisfy any laws that require a writing or signature. YOU CONSENT TO Shoutcast PROVIDING YOU ANY INFORMATION AND NOTICES REGARDING SHOUTCAST ("NOTICES") IN ELECTRONIC FORM. Shoutcast MAY PROVIDE NOTICES TO YOU (1) VIA E-MAIL IF YOU HAVE PROVIDED Shoutcast WITH A VALID EMAIL ADDRESS OR (2) BY POSTING THE NOTICE ON A WEBSITE DESIGNATED BY Shoutcast FOR THIS PURPOSE. The delivery of any notice is effective when sent or posted by Shoutcast, regardless of whether You read the notice or actually receive delivery. You can withdraw Your consent to receive notices electronically by discontinuing Your use of Shoutcast Properties or Shoutcast Materials . In the event You desire to send a notice to Shoutcast, You must send the notice to email@example.com and such notices will be deemed to be delivered and given for all purposes on the delivery date of the electronic mail.
17. INJUNCTIVE RELIEF.
You acknowledge and agree that, notwithstanding any other provisions of this Agreement, Your breach or threatened breach of this Agreement will cause Shoutcast irreparable damage for which recovery of money damages would be inadequate and that Shoutcast, therefore, may obtain timely injunctive relief to protect its rights under this Agreement in addition to any and all other remedies available at law or in equity.
18. GOVERNING LAW - JURISDICTION
This Agreement shall be interpreted, construed and enforced in all respects in accordance with the laws of Belgium without regard for its conflict of laws principles. Each Party irrevocably consents to the exclusive jurisdiction of the courts of Brussels in connection with any action to enforce the provisions of this Agreement, to recover damages or other relief for breach or default under this Agreement, or otherwise arising under or by reason of this Agreement. PLEASE NOTE THAT by agreeing to this Agreement, You are waiving any claims that You might otherwise have against Shoutcast or Shoutcast’s Affiliates based on the laws of other jurisdictions, including Your own.
19. NO PRESS RELEASES.
In no event shall You make press releases or other public statements related to the subject matter of this Agreement or Shoutcast, including but not limited to, using the Integrated Product and/or the Shoutcast Marks, or the existence of this Agreement or the relationship described herein, without the prior written consent of Shoutcast, which consent shall not be unreasonably withheld. You understand and agree that Shoutcast may make press releases or public statements related to the subject matter of this Agreement without Your approval. For clarity, You agree that Shoutcast may promote Your participation in Shoutcast Properties and the Integrated Product without your approval on any website controlled by Shoutcast or any Shoutcast’s Affiliate or in any communication to End Users.
The failure for You to obtain the prior approval of Shoutcast shall be deemed as a material breach of the Agreement.
Each Party agrees to pay and shall be responsible for its own taxes incurred by or levied upon in collection with the performance of its obligations under this Agreement, including without limitation, taxes arising from or measured by each Party's net income. You agree to pay any and all national, provincial and local income taxes, self-employment taxes, sales taxes, local taxes, value added taxes, consumption taxes, duties or levies and assessments, howsoever designated or computed, pertaining to the distribution and sale of your Integrated Products that you agree to indemnify Shoutcast the payments under this Agreement. You agree to indemnify Shoutcast for any of Your Taxes that You may be obligated to pay.
(a) This Agreement constitutes the entire agreement between You and Shoutcast concerning the subject matter of this Agreement, which may only be modified by Shoutcast.
(b) If any part of this Agreement is held invalid or unenforceable, that part will be construed to reflect the parties' original intent as nearly as practicable, and the remaining portions remain in full force and effect, or Shoutcast may at its option instead terminate this Agreement.
(c) The controlling language of this Agreement is English. If You have received a translation into another language, it has been provided for Your convenience only.
(d) Your use of Shoutcast Properties, Shoutcast Marks, or the Shoutcast Materials does not create any partnership, joint venture or agency relationship between You and Shoutcast. Neither You nor Shoutcast has the power to direct or control the day to day activities of the other or to create or assume any obligation on behalf of the other.
(e) A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof.
(f) You may not assign or otherwise transfer by operation of law or otherwise this Agreement or any rights or obligations herein. Shoutcast may assign this Agreement to any entity at its sole discretion.
(g) This Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns.
(h) Neither party will be in default or be liable for any delay, failure in performance or interruption of service resulting directly or indirectly from any cause beyond its reasonable control.
(i) You understand and agree that Shoutcast reserves the right to use whatever technical and legal remedies available to us to prevent abuses to Shoutcast Properties, Shoutcast Marks, or the Shoutcast Materials.
(j) Shoutcast reserves the right to take any action appropriate regarding Your compliance with this Agreement and any activity or conduct that Shoutcast believes You violate the terms of this Agreement.
(k) In addition to any other rights that Shoutcast may have in this section and in the Agreement, Shoutcast reserves the right to request an audit to determine compliance with this Agreement.