Personal Broadcast Services Agreement

Terminology.

The following terminology is used in this document:

  • "SWCast Network" refers to the owners, operators, and administrators of SWCast Network, Inc.
  • "SWCast Network Site" refers to the Website located within the corresponding Internet domain, www.swcast.net, including any subdomains.
  • "SWCast Network Service" refers to all computer applications, servers, networks, and related infrastructure controlled by SWCast Network.
  • "SWCast Network Acceptable Use Policy" refers to the Acceptable Use Policy located at http://www.swcast.net/legal/policy.html .
  • "User" refers to the individual who registers for Personal Broadcast Services.

By registering for Personal Broadcast Services, User agrees to be bound by the terms and conditions set forth within this Agreement and within the SWCast Network Acceptable Use Policy. To the extent that the SWCast Network Acceptable Use Policy conflicts with the terms and conditions set forth herein, this Agreement shall supercede. Questions regarding these terms and conditions should be addressed to legal@swcast.net .

Eligibility.

Personal Broadcast Services is a subscription-based program available specifically to individuals and organizations based within the United States for the express purpose of broadcasting non-interactive, non-dramatic audio content on the Internet.

Grant of License.

SWCast Network hereby grants User the right to perform exclusively through the SWCast Network Site a single- or dual-band digital broadcast transmission a) that complies with the SWCast Network Acceptable Use Policy and any applicable statutory licensing obligations within the United States; b) that includes musical works represented in the ASCAP and BMI repertories or musical works which have been independently licensed by each respective copyright owner or agent; c) that includes sound recordings lawfully acquired for domestic or promotional use; and d) that does not exceed the specified monthly limits for channel-tuning-hours and gross revenue generation for the selected Program Tier of the Joint Performance Licensing Program ("Program Tier").

User shall report monthly gross revenue generation in connection with Personal Broadcast Services within 14-days of the completion of each audit period. If a) the gross revenue generation for an audit period exceeds the specified monthly limit for the selected Program Tier or if b) the channel-tuning-hours for an audit period exceeds the specified monthly limit for the selected Program Tier, then an overage charge shall be applied based upon the rate difference of the highest appropriate Program Tier with the addition of a $4.50 processing fee.

User may not rent, lease, transfer, nor resell Personal Broadcast Services without written consent of SWCast Network. User may not charge a fee for reception of the broadcast audio transmission in association with Personal Broadcast Services without written consent of SWCast Network. User may not provide direct-access links to the broadcast audio transmission in association with Personal Broadcast Services without written consent of SWCast Network. User may not publish on-demand or downloadable audio content in association with Personal Broadcast Services without written consent of SWCast Network. User may not facilitate retransmission or recording of the broadcast audio transmission in association with Personal Broadcast Services without written consent of SWCast Network.

User may submit the broadcast in association with Personal Broadcast Services for inclusion in the audiorealm.com directory or the shoutcast.com directory should the respective software product(s) be directly employed in the production or transmission of the broadcast.

User shall permit SWCast Network to routinely monitor the broadcast audio transmission in association with Personal Broadcast Services and to routinely collect summary logs pertaining to playlists and listeners. In addition, User will make good faith efforts to furnish any supplemental books and records as requested by SWCast Network for purposes of report verification upon 30-days written notice.

Relationship of Parties.

Nothing within this Agreement shall be construed as establishing a legally-binding partnership, corporation, franchise, joint-owned venture, client-attorney relationship, or employee-employer relationship between User and SWCast Network.

It is further understood that User is an independent contractor and that no business association or affiliation exists with respect to SWCast Network beyond the scope of this Agreement. User is not receiving any ownership or proprietary right, title, or interest in the SWCast Network Service including, but not limited to, the copyrights, trademarks, patents, trade-secrets, and other intellectual property related thereto.

Publicity Rights.

SWCast Network shall have worldwide, royalty-free right to re-use original promotional materials once published by User on the SWCast Network Site. Such re-use shall extend specifically to advertisements, demonstrations, announcements, and presentations of products and services provided by SWCast Network. This right shall terminate upon the removal of the same in its entirety by User.

Indemnification.

SWCast Network shall indemnify and hold harmless User from any and all claims or demands made with respect to the license granted under this Agreement. User agrees to notify SWCast Network immediately of any such claims or demands and to cooperate fully with SWCast Network in an investigation and resolution. This indemnity shall not apply to User's failure to cure a breach or default of this Agreement.

SWCast Network's total liability is strictly limited to the amount of payments and fees actually issued to SWCast Network by User under this Agreement for the term in which the subject of the claim or demand applies.

Disclaimer.

THE SWCAST NETWORK SERVICE IS PROVIDED ON AN "AS-IS" AND "AS AVAILABLE" BASIS. SWCAST NETWORK MAKES NO WARRANTY, REPRESENTATION, OR GUARANTY AS TO THE CONTENT, SEQUENCE, ACCURACY, TIMELINESS, OR COMPLETENESS OF THE SWCAST NETWORK SERVICE. SWCAST NETWORK MAKES NO WARRANTY, REPRESENTATION, OR GUARANTY THAT THE SWCAST NETWORK SERVICE AND THE INFORMATION OBTAINED THEREIN MAY BE RELIED UPON FOR ANY PARTICULAR REASON OR PURPOSE. SWCAST NETWORK MAKES NO WARRANTY, REPRESENTATION, OR GUARANTY THAT USE OF THE SWCAST NETWORK SERVICE WILL BE UNINTERRUPTED, SECURE, VIRUS-FREE, OR ERROR-FREE NOR THAT ANY DEFECTS CAN BE CORRECTED.

Representations.

User represents and warrants that (a) he or she is an individual acting solely in his or her personal capacity; (b) he or she is using his or her actual identity; (c) he or she has the power to enter into and perform a contract; (d) he or she has provided only true, accurate, current and complete information; and (e) he or she will maintain and promptly update all information provided to ensure its truth, accuracy, currency, and completeness.

Payments and Fees.

User shall pay a one-time setup fee, if applicable, and a recurring membership fee based upon a 30-day billing cycle from the date of registration. Initial payment shall be received in-full within ten calendar days of purchase. Recurring payments shall be received in-full within ten calendar days of each successive billing cycle. Overage charge payments shall be received in-full within ten calendar days of balance adjustment.

User is responsible for all additional costs, taxes, and levies incurred with respect to Personal Broadcast Services, including but not limited to obtaining the required computer or network hardware and software to generate, deliver, and receive broadcast audio transmissions.

Registrations may take up to 24 hours to be processed. Requests for upgrades, downgrades, or cancellations should be directed to accounts@swcast.net . Payment is non-refundable.

Termination.

SWCast Network, in its sole discretion, shall determine User's compliance with the foregoing Agreement. SWCast Network reserves the right terminate this Agreement and to take whatever action it deems necessary to limit potential liability upon itself and to cooperate with any pending legal investigation.

Miscellaneous.

The foregoing Agreement constitutes the entire understanding between User and SWCast Network with respect to the subject matter hereof. There are no understandings, agreements, conditions or representations with reference to the subject matter herein that are not expressly referenced herein or superseded hereby.

Last Updated: 05-Mar-2008