Feed Media Inc. Standard Terms and Conditions

These Standard Terms and Conditions (this “Agreement”) are incorporated by reference into and made a part of the Feed Media Inc. Order Form (the “Order Form”) entered into by and between the Client named on the Order Form (“Client”) and Feed Media Inc., a Delaware corporation with offices at 845 Market St #450, San Francisco, CA 94103 (“Feed.FM”), as of the “Effective Date” identified in the signature block in the Order Form.  This Agreement sets forth the terms and conditions pursuant to which Feed.FM will provide the Services and API (both, as defined below) to Client and establishes a binding legal contract between Client and Feed.FM. 

 

1.      Definitions

1.1    API” means the application programming interface as documented at www.feed.fm/api-documentation/ and any supporting documentation provided by Feed.FM.

1.2    API Content” means all Content provided by Feed.FM via the API for use in connection with the Services.

1.3    Client Materials” means all material and information belonging to or provided by Client, including but not limited to Client’s tradenames, logos and trademarks.

1.4    Content” means musical works, sound recordings and Metadata associated therewith as licensed from Third Party Rights Holders for use in connection with the Services.

1.5    Intellectual Property Rights” means any patent rights, copyrights, trade secrets, trademarks, service marks, rights in know-how and any other similar rights recognized under any laws or international conventions and in any country or jurisdiction in the world, and all present and future registrations, applications, disclosures, renewals, extensions, continuations or reissues of the foregoing. 

1.6    Metadata” means  descriptive data which provides information such as featured artist name, album title, sound recording title, copyright, and track number.

1.7    “Play” and/or "Plays" means any start of a single piece of streaming music content, usually referred to as a song.

1.8    PRO” means a performing rights organization (by way of example, ASCAP, BMI or SESAC) (“PRO”).

1.9    Services” means those digital music curation, playlist and playback services provided by Feed.FM hereunder, including, but not limited to, all professional and/or support services specified under Section 3 of this Agreement or a Statement of Work (“SOW”), if any, performed by Feed.FM pursuant to this Agreement.

1.10    Site” means the website set forth in the Order Form that is owned or controlled by Client and made accessible via the World Wide Web, to which the Services are applied, as well as those website(s) owned or controlled by Feed.FM on which any Technology appears and through which the Service is made available for the public performance and/or public display of API Content.

1.11  Technology” means the materials, software, API, hardware, information, know-how, and technology owned by or licensed to Feed.FM and used to provide the Services.

1.12  Usage Data” means any data collected by Feed.FM regarding usage of the Services, including, among other data, number of plays, skipped songs, liked songs, played songs, session times, and return visits.

2.      Privacy Policy

2.1   Terms of Use.  All use of the Services is subject to and governed by the Feed.FM Terms of Use, located at https://developer.feed.fm/terms_and_conditions.html which terms are incorporated herein by this reference.  In the event of a conflict between this Agreement and the Terms of Use, the terms of this Agreement shall control.

2.2    Privacy Policy.  All information collected by Feed.FM during Client’s registration for the Services and all use of the Services is subject to and governed by the Feed.FM Privacy Policy, located at developer.feed.fm/privacy.html, which policy is incorporated herein by this reference.

3.      Services

3.1    Standard Services.  Feed.FM will make available to Client a digital workspace and all related Technology to enable the Client to create its own Internet radio station (the “Player”) consisting of either API Content or Client Materials,  for playback on the Site.  In Feed.FM’s determination, the Player may include use of Feed.FM Marks (as defined below) identifying Feed.FM as the originating source for the public performance or communication to the public of API Content or Client Content (e.g., through the use of a notice such as “Powered by Feed.FM”).

3.2    Professional Services.  In the event Client desires customization of the Player or development of features or functionality not currently offered by Feed.FM, Client may order professional Services from Feed.FM through use of project-specific Statements of Work (each an “SOW”).  If and when Client desires to obtain such professional services, Client shall communicate to Feed.FM the type and extent of the Services desired and Feed.FM shall develop and provide to Client an SOW describing the desired Services for Client’s review and approval.  Feed.FM shall have no obligation to provide Services to Client, and Client shall have no payment obligations for such Services, unless and until an SOW specifying the scope of services to be provided and the costs thereof has been duly executed by authorized representatives of each party.  Such SOWs, if any, shall be incorporated by reference into and made a part of this Agreement upon execution by authorized representatives of each party.  In the event of any conflict between the terms and conditions of an SOW and the terms and conditions of this Agreement, the terms and conditions of the SOW shall govern with respect to the Services provided thereunder.  The parties may, by mutual agreement, make changes (“Changes”) to the scope, schedule, fees, term or other substantive aspects of the Services agreed to in any SOW.  The party requesting a Change shall prepare a written “Change Order,” specifying in adequate detail the requested Change(s), and shall submit it to the other party for review and, if accepted, approval thereof.  In no event shall any Change be effective or acted upon in any way or implemented until a Change Order defining such Change has been approved in writing by the duly authorized representatives of both parties.

3.3    Premium Services.  Subject to payment of the applicable fees, Client shall have access to certain mutually agreed upon premium services identified on the Order Form.  Premium services may include, without limitation, additional functionality, marketing tools, e-commerce support, advertising sales, special promotions, and premium analytics or reporting.  Nothing herein shall obligate Feed.FM to provide any Premium Services, some or all of which may be discontinued by Feed.FM at any time; provided, however, that in the event any premium services are discontinued after Client has paid a fee for a fixed term for such premium services, Feed.FM shall reimburse Client for the pro rata portion of the fixed term for which the premium services have been discontinued.

3.4    Services and API Availability; Support Services.  Feed.FM shall use commercially reasonable efforts to ensure the Services and API are available at all times, other than during scheduled maintenance.  Client may email Feed.FM at support@feed.fm to report concerns with the Player or API.  Feed.FM shall use best efforts to fully resolve any concerns reported via such support contact.  Notwithstanding the preceding sentences of this Section 3.5 and subject to Section 6.3, Client understands that the Services are provided by Feed.FM using networks and services provided or managed by third parties and Feed.FM makes no representations and warranties that the Services will be available on an uninterrupted basis. 

3.5    Geofiltering.  Client acknowledges and agrees that Feed.FM may use geofiltering and other technical measures to limit accessability to API Content based upon a user`s geographic location as Feed.FM may determine in its sole discretion in order to comply with licensing requirements and applicable laws. Feed.FM is not currently licensed to deliver music outside of the United States of America.

4.      Payments

4.1    Initial Fee for Standard Services.  Client shall pay to Feed.FM the Initial Fee, if any, stated on the Order Form. 

4.2    Monthly Fee for Standard Services.  Unless otherwise agreed in writing by the parties, Client shall pay the monthly fees (“Monthly Fees”) that correspond to the amount of Content to be streamed on the Site in any given month (“Subscription Tier”) as selected by the Client and set forth in the relevant Order Form.  The Monthly Fees shall be invoiced in advance at the beginning of each calendar month.  

4.3    Additional Monthly Fees. Feed.FM will notify the Client by email when it has consumed 90% of the selected Subscription Tier.  Upon such notice, Client (“Additional Monthly Fees”) shall be in accordance with the structure for such Additional Monthly,  Quarterly, or Annual Fees set forth in the relevant Order Form. .   

4.4    Expenses; Premium Services.  Unless otherwise agreed in writing by the parties, Client will pay (i)  the fees for any Premium Services; and (ii) all fees agreed to by the parties either on the Order Form or otherwise in writing. 

4.5    Professional Services.  Client will pay to Feed.FM the amounts set forth in any applicable SOW for all professional services provided under such SOW and this Agreement.

4.6    Payment Terms.  If any amount under this Agreement is not paid within 30 day,  Feed.FM may, without limiting Feed.FM’s other rights or remedies, suspend the Services to Client until all amounts are paid in full.  

4.7    Taxes.  Each party shall be responsible for payment of any and all taxes and other charges levied against such party by any applicable governmental entity as a result of this Agreement or the transactions contemplated hereunder; provided, however, that Client acknowledges and agrees that the fees quoted by Feed.FM are exclusive of any sales, use or other similar taxes that Feed.FM may be obligated to charge under law.

 

5.      Ownership and Licenses

5.1    Feed.FM Ownership .   Feed.FM Ownership. As between the parties, Feed.FM owns, and will continue to own, all right, title, and interest, including all Intellectual Property Rights, in and to: (i) its pre-existing software, Technology, Player, and API; (ii) any trademarks, service marks and related branding, including registrations (if any) thereof, relating to the Services (including, specifically, the Feed.FM name that the parties intend to feature on the Site), the Player or the API; (iii) all Feed.FM trade secrets related to any aggregation, collection or other obtainment of Usage Data utilized in the provision of the Services or operation of the API; and (iv) all Technology developed by Feed.FM in connection with the performance of this Agreement, including, without limitation, any software and other technology developed for use in connection with the operation of the Player or API (collectively, the “Feed.FM Rights”). Nothing herein will be construed to obligate Client to contribute to the development of any Technology to be used in connection with the Player or the API. As between the parties, Feed.FM is solely responsible for the prosecution, enforcement, and defense of Feed.FM Rights.

5.2    Client Ownership.  As between the parties, Client owns and continues to own all right, title, and interest, including all Intellectual Property Rights, in and to Client Materials.  As between the parties, Client is solely responsible for the prosecution, enforcement, and defense of the Client Materials. 

5.3    Usage Data.  As between the parties, Feed.FM owns and shall continue to own, all right, title, and interest in and to all Usage Data.

5.4    Feed.FM License

(a)    Subject to Client’s acceptance and compliance with the terms and conditions of this Agreement, Client is hereby granted, during the Term (as defined below) a limited, nonexclusive, nonassignable (except as authorized herein), right to access through the Feed.FM website, the Player and to use the Services solely for the purpose of integrating the Player into the Site to display and transmit the Content on the Site. 

(b)    Subject to the terms and conditions of this Agreement and during the Term, as defined below, Client is hereby granted a limited, nonexclusive, non-sublicenseable, nonassignable (except as authorized herein), freely revocable license to access and use the API solely for the purpose of accessing API Content to be streamed through the Player and displayed and transmitted on the Site. 

(c)    Subject to Client’s compliance with the terms and conditions of this Agreement, Client is hereby granted, during the Term (as defined below) a limited, nonexclusive, nonassignable (except as authorized herein), royalty free right and license to display and use the logos, trade names, trademarks, and service marks of Feed.FM (“Feed.FM Marks”) for the sole purpose of carrying out its obligations under this Agreement, subject to the following conditions:  (i) it shall keep intact any proprietary notices of Feed.FM; (i) it shall comply with Feed.FM’s trademark use guidelines (ii) it acknowledges that all goodwill generated through its use of the Feed.FM Marks will inure to the benefit of Feed.FM; (iii) it hereby assigns and agrees to assign to Feed.FM any and all goodwill generated through its use of the Feed.FM Marks; and (iv) upon termination of this Agreement, it shall cease using the Feed.FM Marks.

(d)    Reservation.  All rights not expressly granted to Client herein are reserved by Feed.FM and Third Party Rights Holders, as applicable.  Feed.FM may, at any time, change the specifications or restrict or limit access to the API in Feed.FM’s sole discretion,

5.6    Restrictions. Client agrees that through its use of the Services and the API, Client will not, directly or indirectly, violate any applicable laws, the rights of others.  Further, Client agrees that:

it will not:

(a)    modify, adapt, translate, decompile, disassemble, reverse engineer, reverse assemble, analyze or otherwise examine, prepare derivative works of, modify, or attempt to derive source code from the Services or API, or attempt to do any of the foregoing;

(b)    obtain access to the Services or API;

(c)    include any viruses, worms, Trojan horses or any other harmful code that could, in Feed.FM’s sole discretion, affect the Services or API;

(d)    copy, distribute, reproduce, sell, resell, lend, lease, rent, use, or allow access to the Services, API or API Content except as explicitly permitted under this Agreement;

(e)    aggregate the API Content (including Metadata, as defined below) to create databases, or any other compilations of API Content, or use the API Content to populate any other sites, applications or services;

(f)     interfere or attempt to interfere with the proper functioning of the Services or API;

(g)    use the Services or API for any illegal or unauthorized purpose;

(h)    cache or store any API Content, except for local caching of Metadata for up to 24 hours;

(i)     remove, obscure, or alter any notice of patent, copyright, trademark or other proprietary right appearing in the Services, whether of Feed.FM or any other third party, including, but not limited to, Third Party Rights Holders; 

(j)     access any undocumented feature of the API, or use any documented feature of the API other than for its intended purpose;

 

(k)     attempt to conceal the Site’s identity when requesting authorization to use the API;

(l)   use the Services or API in a manner that adversely impacts the stability of Feed.FM’s servers or the Services or adversely impacts the behavior of other clients or applications using the API, in Feed.FM’s sole determination; 

(m)    use the API to develop an application to automate or assist with synchronization with external media (such as slide shows, video, or games), to provide background music to or integrate the API with any applications or websites, other than the Site, making digital audio transmissions of sound recordings; 

(n)    edit, reformat or otherwise interfere with or modify (or allow Site users to edit, reformat or otherwise interfere) or attempt to do any of the foregoing with any API Content;

(o)    reproduce, or allow Site users to reproduce, any API Content on any form of storage media, whether now known or hereafter created, unless expressly permitted by the API;

(p)     distribute any application online through one or more website(s), including the Site, or use the Feed.FM trademarks, or words confusingly similar or describing Feed.FM’s products or services, as the registered URL for the Site, except as expressly approved in writing by Feed.FM; 

(q)     publish as part of an advance playlist or otherwise any of the sound recordings uploaded to the Player for public performance as part of the Services through the Site; and

(r)    use the API or the Services to publicly perform or publicly display any API Content in any establishment, venue or location open to the public (e.g., bars, restaurants, retail stores, offices, gyms, hotels, hospitals, etc.), such uses being expressly prohibited under this Agreement;

and the Site Will Not:

(s)    do any of the following: (i) facilitate and/or promote illegal activity, including, without limitation, any activity that is fraudulent, such as engaging in phishing or otherwise obtaining financial or other personal information in a misleading manner or for misleading purposes, (ii) engage in the endorsement of political positions, political candidates or religious causes or use the Services to display or imply any such endorsement by music artists or Content providers or the copyright owners thereof, (iii) display or imply any kind of product endorsement by music artists or Content providers or the copyright owners thereof, and (iv) engage in or use the Services for prohibited business activities, including, but not limited to, resale of the Services and the use of the Services in association with contests or promotions;

(t)   facilitate the access, storage, distribution or other exploitation of Content, which includes making the Content available for download to Site users and bundling or reselling streams via the Services;

(u)    a Site user into believing that: (i) he or she is interacting directly with the Services when interacting with the Site, or (ii) the Site was created by or is endorsed by or affiliated with Feed.FM;

(v)    focus on a specific musical artist or specific set of musical artists.5.7    Rights Clearance for Content

(w)    Reproductions.  Feed.FM will be responsible for clearing the rights to, and paying all royalties for, all sound recordings embodied in Content that is reproduced solely for the purposes of facilitating digital audio transmissions of sound recordings via the Services on the Site.  (b)    Public Performances and Communications to the Public.  Feed.FM will be responsible for clearing the rights to, and paying all royalties for communications to the public and/or public performances of the sound recordings included in Content solely as part of the Services made available through the Site, but not any other sites, and the musical works embodied in such sound recordings, including by entering into license agreements with PROs or Third Party Rights Holders for such communication to the public and/or public performance. 

(x)    Client may only use API Content provided as part of the Services.   

6.      Representations and Warranties; Limitation of Liability

6.1    Mutual Representations and Warranties.  Each party represents and warrants to the other party that:  (i) it has the full corporate right, power, and authority to enter into this Agreement; (ii) the person entering into this Agreement on behalf of the party is authorized to do so; (iii) the execution and performance of the obligations and duties of this Agreement by such party, do not and will not violate any agreement to which such party is a party or by which it is otherwise bound; and (iv) when executed and delivered (whether in hard copy or electronically) by such party, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.

6.2    Additional Client Representations and Warranties.  Client further represents and warrants to Feed.FM that:

(a)    the Site will comply with all applicable local, state, national and international laws and regulations.

.

6.3    Disclaimer.  EXCEPT AS SET FORTH ABOVE, FEED.FM MAKES NO OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY REGARDING OR RELATING TO THE SERVICES, API, API CONTENT OR ANY OTHER MATERIALS OR DELIVERABLES FURNISHED OR PROVIDED TO CLIENT UNDER THIS AGREEMENT.  THE SERVICES AND API ARE PROVIDED ON AN “AS-IS,” “AS AVAILABLE,” “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED.  EXCEPT AS SET FORTH ABOVE, TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, FEED.FM AND ITS AFFILIATES, PARTNERS AND SUPPLIERS HEREBY DISCLAIM ALL OTHER WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  NO ADVICE OR INFORMATION, EITHER ORAL OR WRITTEN, OBTAINED BY CLIENT FROM FEED.FM, OR ANYONE ACTING ON BEHALF OF FEED.FM, OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.  FEED.FM DOES NOT WARRANT OR GUARANTEE THAT THE SERVICES OR API WILL OPERATE UNINTERRUPTED OR FREE FROM ERRORS AND DOES NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.  6.4    Limitation of Liability.  EXCEPT WITH RESPECT TO EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9 OR A BREACH OF SECTION 7, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY REASON WHATSOEVER AND FOR ANY CAUSES OF ACTION ARISING IN RELATION TO THIS AGREEMENT FOR (I) CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, INDIRECT OR PUNITIVE  DAMAGES OR COSTS OF COVER, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (II) DAMAGES IN EXCESS OF ALL AMOUNTS PAID BY CLIENT TO FEED.FM IN CONNECTION WITH THIS AGREEMENT OR ANY ORDER FORM.  THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS.

7.      Confidentiality.  Each party (a “Receiving Party”) agrees that the business, technical, and financial information it obtains from the other party (a “Disclosing Party”) are the confidential property of the Disclosing Party (“Proprietary Information”).  Except as expressly allowed in this Agreement, a Receiving Party will hold in confidence and neither disclose nor use any Proprietary Information of a Disclosing Party.  A Receiving Party’s confidentiality obligation shall not apply to information it can document (i) was publicly known and made generally available in the public domain prior to the time of disclosure; (ii) becomes publicly known and made generally available after disclosure through no action or inaction of the Receiving Party; (iii) is already in the possession of the Receiving Party without restriction on use or disclosure at the time of disclosure by the Disclosing Party as shown by the Receiving Party’s files and records immediately prior to the time of disclosure; (iv) is obtained by the Receiving Party without restriction on use or disclosure from a third party without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Proprietary Information, as shown by the Receiving Party’s files and records immediately prior to the time of disclosure.  This Agreement shall be the Proprietary Information of Feed.FM.

8.      Term and Termination

8.1    Term.  This Agreement will take effect on the Effective Date and will remain in force thereafter during the Initial Term indicated on the Order Form (or for an initial one year term if no term is specified on the Order Form) (the “Initial Term”) unless earlier terminated in accordance with this Agreement.  At the expiration of the Initial Term, this Agreement shall automatically renew for additional one year terms (each a “Renewal Term,” and, collectively with the Initial Term, the “Term”) unless and until either party provides written notice to the other party, not less than 30 days prior to the expiration of the then-current Term, that it does not desire to renew.

8.2    Termination for Cause. Either party may terminate this Agreement upon written notice to the other party if: (i) the other party is in material breach of any term, condition or provision of this Agreement, and such breach is not cured within 30 days after the non-breaching party gives written notice of such breach; or (ii) the other party (1) terminates or suspends its business; (2) becomes insolvent, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority; or (3) becomes subject to any bankruptcy or insolvency proceeding under federal or state statutes that is not dismissed within 60 days of its inception.  Notwithstanding the foregoing sentences of this Section 8.2, either party may terminate this Agreement immediately should any breach of this Agreement by Client or any action undertaken by Feed.FM in performance of its obligations under this Agreement subject Feed.FM or Client, respectively, to any Claim (as defined below) for copyright infringement.

8.3    Effect of Termination.  Upon any termination or expiration of this Agreement, (i) all licenses granted under this Agreement shall cease and Client shall cease using and accessing the API; (ii) a Receiving Party shall return, or upon a Disclosing Party’s request, destroy all Proprietary Information of the Disclosing Party then in such Receiving Party’s possession and control; and (iii) Client shall pay to Feed within 30 days of termination all amounts due, including all amounts set forth in any applicable SOW for all professional services provided through the date of termination.

8.4    Survival of Terms.  Notwithstanding any termination or expiration of this Agreement, all terms and conditions of this Agreement which by their terms or their nature should survive any such termination or expiration, including, without limitation, Sections 1, 4,5.1, 5.2, 6, 7, 8.3, 8.5, 9, 10 and 11 shall so survive.

8.5    Service Term: Term-Based Services.  With respect to Services that are to be provided for/over a specific period of time (e.g., packages, term-based projects and subscription services), the Service Term shall commence on the start date indicated in the Order (or, if no start date is indicated, upon Company's acceptance of the Order, or as otherwise agreed by the parties), and shall remain in effect for the initial term set forth in the Order (the "Initial Term"), unless sooner terminated as provided for in the Agreement. Except as otherwise provided in the Order, the Service Term shall automatically renew for consecutive one-year renewal periods (each, a "Renewal Period") until cancelled or terminated in accordance with the terms hereof. Except as otherwise provided in the Order, Customer may prevent the Service Term from renewing by sending written notice to Company not less than thirty (30) days prior to the expiration of the Initial Term or the then-current Renewal Period, as applicable. The Initial Term together with all Renewal Periods shall be referred to as the "Service Term."

9.      Indemnification

9.1    Client.  Client agrees to indemnify, defend, and hold harmless Feed.FM, its directors, officers, employees, and agents, with respect to any third party claim, demand, cause of action, debt or liability, losses or damages (“Claim”), including reasonable attorneys' fees, to the extent based upon a claim that the Site, except to the extent Feed.FM is required to indemnify Client under Section 9.2; or (ii) arising as a result of Client’s breach of any representation, warranty or covenant of Client made in this Agreement.

9.2    Feed.FM

(a)    Subject to Client’s compliance with the terms and conditions of this Agreement, Feed.FM agrees to indemnify, defend, and hold harmless Client, its directors, officers, employees, and agents, and defend any action brought against same with respect to any Claim, to the extent based upon or arising in connection with an actual or alleged claim (i) by a copyright owner alleging that the digital audio transmission of a sound recording of a musical work made through the Services on the Site infringes the Intellectual Property Rights of such copyright owner, (ii) that the Technology infringes or violates the Intellectual Property Rights of third parties.

(b)    In the event of an infringement Claim against Client with respect to the Technology, or in the event Feed.FM believes such a Claim is likely, Feed.FM may, at its option (i) appropriately modify or substitute the Technology licensed hereunder, so long as such modification or substitution does not materially degrade or alter the functionality of the Services; or (ii) obtain a license with respect to the applicable third party Intellectual Property Rights.  In the event neither of the foregoing alternatives is commercially practicable, Feed.FM shall have the right to terminate this Agreement and Client’s licenses hereunder. 

(c)    Feed.FM shall have no obligation or liability for (i) Client’s use of the then-current version of the API  so long as this was made available to Client and Feed.FM instructed Client to use such version; (ii) Client’s use, operation or combination of the API with nonFeed.FM programs, data, equipment, documentation or marks if such Claim would not have been occurred but for such use, operation or combination; (iii) Client’s modification of the API if such Claim would have been avoided but for such modification.

(d)    The obligations set forth in this Section 9.2 shall constitute a party’s entire liability and the other party’s sole remedy the claims associated with such indemnity obligations. 

9.3    Procedure.  In case any Claim is at any time brought against a party or its affiliates (or any of their respective employees, officers, directors or representatives) (an “Indemnified Party”) and such Indemnified Party is entitled to indemnification pursuant to this Section 9, the party obligated to provide such indemnification (the “Indemnifying Party”) will defend such Claim, at the sole expense of the Indemnifying Party, using counsel selected by the Indemnifying Party but subject to the Indemnified Party’s reasonable approval. If the Indemnifying Party fails to take timely action to defend such a Claim after having received written notice from the Indemnified Party of such failure, the Indemnified Party may defend such a Claim at the Indemnifying Party’s expense. The Indemnifying Party will keep the Indemnified Party advised with respect to such Claims and the progress of any suits, and the Indemnified Party shall have the right to participate, at the Indemnified Party’s expense, in any suit instituted against it and to select attorneys to defend it, which attorneys will be independent of any attorneys chosen by the Indemnifying Party relating to such Claim or related Claim. The Indemnifying Party will not settle, compromise or otherwise enter into any agreement regarding the disposition of any Claim against the Indemnified Party without the prior written consent and approval of the Indemnified Party, unless such settlement involves only the payment of money by the Indemnifying Party. 

10.    Dispute Resolution

10.1  The following binding dispute resolution procedures shall be the exclusive means used by the parties to resolve all disputes and claims arising out of or relating to the Agreement (collectively, “Disputes”).  Notwithstanding the foregoing, pending conclusion of the dispute resolution process herein prescribed, either party may seek and obtain an injunction or other appropriate relief from a court to preserve or protect its Proprietary Information or Intellectual Property Rights with respect to any matter.

10.2  The party seeking resolution of a Dispute, shall give the other party written notice describing the nature of the Dispute and the relief sought.  Within 30 days following delivery of such Dispute notice, executives of each party will meet and attempt to resolve the Dispute.  If the Dispute is not finally resolved within 30 days (or such other period of time as the parties may agree to in writing) following delivery of such Dispute notice, then the party seeking relief may then initiate arbitration.

10.3  Any arbitration action shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”).  The parties agree that any arbitration action shall be heard and decided by one arbitrator (the “Arbitrator”) to be agreed upon by the parties.  If the parties cannot agree upon an Arbitrator within 14 days of delivery or the demand for arbitration (“Demand”) (or such other time period as the parties may agree to in writing), the parties agree to the appointment of a single arbitrator pursuant to R-11(a) and (b) of the AAA Commercial Arbitration Rules or whatever AAA Commercial Arbitration Rules are then in effect for the appointment of a single arbitrator.

10.4  The Arbitrator shall be bound by the laws of the State of California and all rules of that jurisdiction relating to discovery and the admissibility of evidence, including, without limitation, all relevant privileges and the attorney work product doctrine.  The Arbitrator shall have the power to grant equitable relief when appropriate and available under applicable law; however, the parties expressly agree that the Arbitrator shall be prohibited from awarding any costs, damages, or amounts prohibited pursuant to Section 6.4.  The Arbitrator shall issue a written opinion containing findings of fact and conclusions of law within 30 days after the arbitration proceeding is concluded.  The arbitration award shall be final, binding and non-appealable, and may be entered and enforced by any court of competent jurisdiction.  If any provision of this Agreement is deemed unenforceable (in whole or in part) by the Arbitrator, the parties agree that the Arbitrator shall amend or delete such provision so as to effectuate the intent of such provision and of this Agreement to the maximum extent that it is enforceable.

10.5  The Prevailing Party to the arbitration shall be entitled to an award of its reasonable costs and attorneys’ fees from the non-prevailing party.  The “Prevailing Party” is the party that is awarded judgment or other legal or equitable relief as a result of the arbitration or the party receiving or entitled to receive a payment of money or the party defeating a claim for receipt or payment of money from the other party in settlement of the Dispute.  If both parties receive a judgment or other award of relief, the Arbitrator shall determine which party, if any, is the Prevailing Party, or shall determine an appropriate allocation of costs and attorneys’ fees between the parties, in each case taking into consideration the merits and amounts of the claims asserted by each party, the relative values of the judgments, or other forms of relief received by each party, the relative equities between the parties, and the parties’ respective contributions to the length and expense or arbitration or proceeding.

10.6  THE PARTIES HERETO AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN SUCH PARTY’S INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.  FURTHER, CLIENT AGREES THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OF MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE, OR CLASS PROCEEDING AND THAT IF THIS SPECIFIC PROVISO IS FOUND TO BE UNENFORCEABLE, THEN THE ENTIRETY OF THIS MANDATORY ARBITRATION SECTION SHALL BE NULL AND VOID.

11.    Miscellaneous

11.1  Assignment/Binding Agreement. Either party shall have the right to assign this Agreement upon written consent of the other party, such consent not to be unreasonably withheld, conditioned or delayed; provided, however, no such consent shall be necessary in the event of a reorganization, merger or acquisition of substantially all of a party’s stock, assets or business.  Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.

11.2  Independent Contractor.  The parties hereto expressly understand and agree that each party is an independent contractor in the performance of each and every part of this Agreement.  Nothing herein shall create an express or implied partnership, agency, joint venture, employment or other association between the parties.  Each party shall be solely responsible for all of its respective employees and agents and its labor costs and expenses arising in connection therewith and for any and all claims, liabilities or damages that may arise on account of that party’s activities, or those of its employees or agents, in the performance of this Agreement.  Except as may be expressly agreed in writing, neither party has the authority, right or ability to bind or commit the other party in any way and will not attempt to do so or imply that it may do so.

11.3  Notices.  Any notice required or permitted under the terms of this Agreement or required by law must be in writing and must be: (i) delivered in person; (ii) sent by first class registered mail, or air mail, as appropriate; or (iii) sent by overnight air courier; in each case properly posted and fully prepaid to the appropriate address set forth in this Agreement or the Order Form.   Notwithstanding the foregoing, any notices required to be given by Feed.FM may be sent to the Client email address set forth on the Order Form. Either party may change its address for notice by notice to the other party given in accordance with this Section 11.3.  Notices will be considered to have been given at the time of actual delivery in person, three business days after deposit in the mail as set forth above, or one business day after delivery to an overnight air courier service.

11.4  Limitation on Claims.  No action arising out of any breach or claimed breach of this Agreement or transactions contemplated by this Agreement may be brought or raised by either party more than one year after the cause of action has accrued.  For purposes of this Agreement, a cause of action will be deemed to have accrued when a party knew or reasonably should have known of the breach or claimed breach.

11.5  Force Majeure.  Neither party will incur any liability to the other party on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without negligence of the parties.  Such events, occurrences, or causes will include, without limitation, acts of God, strikes, lockouts, riots, acts of war or terrorism, earthquake, fire and explosions, but the inability to meet financial obligations is expressly excluded.

11.6  Waiver.  Any waiver of the provisions of this Agreement or of a party’s rights or remedies under this Agreement must be in writing to be effective.  Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed and will not be deemed to be a waiver of such party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such party’s right to take subsequent action.  No exercise or enforcement by either party of any right or remedy under this Agreement will preclude the enforcement by such party of any other right or remedy under this Agreement or that such party is entitled by law to enforce.

11.7  Severability.  If any term, condition, or provision in this Agreement is found to be invalid, unlawful or unenforceable to any extent, the parties shall endeavor in good faith to agree to such amendments that will preserve, as far as possible, the intentions expressed in this Agreement.  If the parties fail to agree on such an amendment, such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.

11.8  Integration.  This Agreement (including the Order Form, any Statements of Work, Exhibits, and addenda hereto signed by both parties which are hereby incorporated into and made a part of this Agreement) contains the entire agreement and understanding of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to said subject matter.  This Agreement may not be amended except by a writing signed by authorized representatives of both parties.

11.9  Publicity.  Any press releases, public announcements or similar publicity with respect to this Agreement or the business relationship between the parties created hereunder must be approved by both parties in writing in advance of issuance.  Feed.FM shall have the right to list Client on Feed.FM’s website and marketing materials as a client of Feed.FM and to use Client’s logo and the Site domain name in any such materials.

11.10Governing Law.  This Agreement will be interpreted and construed in accordance with the laws of the State of California and the United States of America, without regard to conflict of law principles.  The parties hereby consent to the exclusive jurisdiction of the state and federal courts located in San Francisco County, California for resolution of any disputes arising out of this Agreement.