Adaptr Standard Terms and Conditions

These Adaptr Standard Terms and Conditions and all exhibits entered into simultaneously herewith (the “Standard Terms”) set forth the terms and conditions pursuant to which Feed Media Inc. (“Feed”) will provide the API, API Content and the Services (each, as defined below) to the entity accepting these Standard Terms (“Client” or “you”) and End Users (as defined below), as applicable, and establishes a binding legal contract between Client and Feed.

PLEASE READ THE FOLLOWING TERMS CAREFULLY:

BY CLICKING “I ACCEPT,” OR BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE API, API CONTENT OR THE SERVICES, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE API, API CONTENT OR THE SERVICES, YOU AGREE TO BE BOUND BY THE FOLLOWING STANDARD TERMS, INCLUDING FEED’S PRIVACY POLICY (AS DEFINED BELOW). If you are not eligible, or do not agree to theSE STANDARD Terms, then you do not have our permission to use the API, API CONTENT OR THE ServiceS. YOUR USE OF THE API, API CONTENT OR THE SERVICES, AND FEED’S PROVISION OF THE API, API CONTENT OR THE SERVICES TO YOU, CONSTITUTES AN AGREEMENT BY FEED AND YOU TO BE BOUND BY THESE STANDARD TERMS.

  1. Definitions
  1. Adaptr Qualifications” has the meaning set forth in Section 4.7.
  2. American Arbitration Association” or “AAA” has the meaning set forth in Section 10.3.
  3. API” means the Feed application programming interface as documented at https://business.feed.fm/portal and any supporting documentation provided by Feed.
  4. API Content” means all Content obtained by Client and End Users via the API for use in connection with the Services.
  5. Approved Device” means any: (a) laptop or desktop personal computer primarily designed for use at home and not optimized for handheld use or capable of cellular communication; (b) smartphone, tablet or other like hardware device that is easily transportable and is marketed as a portable device; (c) Internet-connected television and/or living room set-top box (as such terms are commonly understood as of the Effective Date, including, by way of example and not limitation, Roku devices and AppleTV); (d) so called “smart” watches, “smart” glasses, or other wearable portable hardware; (e) virtual reality or 360-degree headsets, goggles, helmets or glasses designed for use with “virtual reality,” “augmented reality” and “360 degree” content (as such terms are commonly understood as of the Effective Date); (f) Internet-connected fitness devices designed for personal, at-home use; (g) Internet-connected smart speakers; and (h) in-car dashboard units; solely to the extent each of the foregoing comply with the terms and conditions of these Standard Terms, and, provided further that where a Client Site (as defined below) will be available on devices covered by (d), (e), (f), (g) and/or (h), the fact that the Client Site will be so available will be subject to prior written approval by Feed and Licensors (as defined below), as applicable.
  6. Arbitrator” has the meaning set forth in Section 10.3.
  7. Claim” has the meaning set forth in Section 9.1.
  8. Client” has the meaning set forth in the preamble.
  9. Client Account” has the meaning set forth in Section 3.5.  
  10. Client Rights” has the meaning set forth in Section 5.2.
  11. Client Software” has the meaning set forth in Section 5.2.
  12. Content” means sound recordings, the musical works embodied in sound recordings, and all Metadata associated therewith.
  13. Content Package” means a Digital Data Exchange (“DDEX”)-compliant digital file that contains API Content, Other Materials and associated metadata (which such metadata may be in XML format).
  14. Data Protection Laws” means any applicable Laws related to the privacy of Personal Information of Client or Feed.
  15. DDEX” has the meaning set forth in Section 1.13.
  16. Demand” has the meaning set forth in Section 10.3.
  17. Disclosing Party” has the meaning set forth in Section 7.1.
  18. Disputes” has the meaning set forth in Section 10.1.
  19. Download” (used as a verb or gerund) means the single digital audio transmission of a copy of a sound recording (e.g., an item of Content) capable of persisting permanently on an End User’s Approved Device. “Download” (as a noun) means the permanent digital copy that results from the process of Downloading.
  20. Effective Date” means the date on which Client accepts these Standard Terms.
  21. Electronic Transmission” means a transmission of digital data via the Internet to a single End User in the applicable country of the Territory.
  22. End User” means any End User or subscriber, if applicable, of any Site.
  23. End User Account” means with respect to an End User, the unique user name, password, and if applicable, billing details, associated with such End User, permitting such End User access to a Client Site subject to the EULA (as defined below).
  24. End User De-Identified Information” means information about an End User that has been de-identified, such as through aggregation or anonymization, such that it is no longer End User Personal Information.
  25. End User License Agreement” or “EULA” has the meaning set forth in Section 2.1.
  26. End User Personal Information” means Personal Information or Personal Data related to an End User that Feed processes pursuant to these Standard Terms.
  27. Excluded Client IP” has the meaning set forth in Section 5.2.
  28. Feed” has the meaning set forth in the preamble.
  29. Feed Marks” has the meaning set forth in Section 5.5(c).
  30. Feed Rights” has the meaning set forth in Section 5.1.
  31. Good Standing” means, with respect to an End User, that such End User (a) resides in a country of the Territory and, where Client requires an End User to provide billing details, such billing details are validated and correspond to such country of the Territory; (b) has fully and timely paid all fees with respect to such End User’s End User Account, where applicable; and (c) complies with all terms and conditions in the EULA.
  32. Indemnified Party” has the meaning set forth in Section 9.3.
  33. Indemnifying Party” has the meaning set forth in Section 9.3.
  34. Initial Term” has the meaning set forth in Section 8.1.
  35. 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 (as defined below) 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.
  36. Law” means any local, state, federal or foreign or international law, statute, ordinance, rule, regulation, code, order, judgment or decree, including any content-related restrictions or regulations in any jurisdiction within the Territory.
  37. Licensor” means any licensor of Feed for the rights in any sound recording, musical work, Other Materials or Metadata.
  38. Major Licensor” has the meaning set forth in Section 5.10.
  39. Metadata” means the metadata identifying the featured artist name, album title, sound recording title, copyright, track number, and such other information as provided in connection with a sound recording and the musical works embodied therein by the copyright owner(s) or distributor(s) thereof.
  40. Offline Copy” means the limited encrypted copy that results from the single digital audio transmission of an item of Content delivered via the API via Electronic Transmission to an End User’s Approved Device, as may be authorized hereunder, which such copy: (a) when decrypted with the corresponding key, is capable of being played (in whole or in part) for a limited period of time on an End User’s Approved Device; and (b) is automatically rendered unplayable within a certain period following the expiration or termination of the End User’s applicable subscription.
  41. Other Materials” mean screen shots, artwork, graphic images (e.g., album artwork), artists’ names, images and likenesses, and other information or materials relating to any API Content (including any associated metadata), in each case, that are provided by or on behalf of Licensors solely for Feed’s use in accordance with these Standard Terms and in accordance with any other restrictions as Licensors may provide in the Metadata.
  42. Performance” means to render audible for an End User a sound recording and the musical work embodied therein.
  43. Personal Data” or “Personal Information” have the meaning set forth in the Data Protection Laws.
  44. Play” means the Performance of all or any portion of a sound recording to an End User arising either from a transmission to an End User’s Approved Device or a Performance from an Offline Copy.
  45. Player” has the meaning set forth in Section 3.1.
  46. Prevailing Party” has the meaning set forth in Section 10.5.
  47. PRO” means a performing rights organization (by way of example, ASCAP, BMI, GMR or SESAC) (“PRO”).
  48. Proprietary Information” has the meaning set forth in Section 7.1.
  49. Receiving Party” has the meaning set forth in Section 7.1.
  50. Removed Content” has the meaning set forth in Section 5.5(g).
  51. Renewal Term” has the meaning set forth in Section 8.1.
  52. Services” means those services specified under Section 3 of these Standard Terms or as specified on the Website (as defined below) and performed by Feed pursuant to these Standard Terms.
  53. Site” means the website(s) or downloadable application(s), or both, identified in the Client Account portal on the Website, which: (a) are owned and controlled by Client; (b) are made accessible to End Users to which the Services are applied; (c) use the Internet Protocol for receipt of API Content via digital networks, and (d) may contain identification stating “Powered by Feed,” “Powered by Adaptr,” or such other branding as approved by Feed from time to time.
  54. Standard Terms” has the meaning set forth in the preamble.
  55. Stream” or “Streaming” (used as a verb or gerund) means the process of delivering a single encrypted digital transmission (other than as a Download or Offline Copy) of a sound recording or part thereof via the API to an End User’s Approved Device, whereby such transmission is contemporaneous or nearly contemporaneous with the playback of the same, and which is not intended to be, and is designed not to be, capable of being copied or permanently stored on such Approved Device in any format or for any period of time (or accessible for future listening), except as a temporary device-side cache of such digital audio transmission that: (a) is performed substantially contemporaneously with its delivery to such device; (b) is performed only while the End User’s Approved Device is connected to the API via the Internet (solely excepting the circumstance set forth in the following clause (c)); (c) consists solely of the sound recording then being rendered as a digital audio transmission, plus the immediately following sound recording (which two sound recordings may continue to play in the event that the Approved Device’s Internet connection to the API is lost during playback); and (d) is purged immediately following playback, except as permitted pursuant to Sections 5.5(b)(ii) and 5.5(b)(iii) of these Standard Terms with respect to temporary caching on an End User’s Approved Device. “Stream” (as a noun) means the encrypted digital transmission made in the process of Streaming.  
  56. Subscription” has the meaning set forth in Section 4.1(b).
  57. Subscription Fee” has the meaning set forth in Section 4.1(a).
  58. Subscription Term Month” has the meaning set forth in Section 4.1(c).
  59. Subscription Tier” has the meaning set forth in Section 4.1(a).
  60. Taxes” has the meaning set forth in Section 4.2.
  61. Technology” means the materials, software, hardware, information, know-how, and technology owned by or licensed to Feed and used to provide the Services.
  62. “Term” has the meaning set forth in Section 8.1.
  63. “Territory” means the world, excluding those countries that may be identified in an Exhibit A to these Standard Terms from time to time on Feed’s exhibit page https://adaptr.zendesk.com/hc/en-us/articles/360052906931-What-territories-does-Adaptr-provide-music-for-
  64. which exhibit may be updated in Feed’s sole discretion during the Term and subject to rights of Licensors in the API Content in the respective countries; provided that, notwithstanding anything herein to the contrary, the Territory shall be deemed to exclude any countries to the extent such countries are or become subject to any national or international trade embargo or similar restriction of Law.
  65. Usage Data” means any data collected by Feed regarding usage of the Services, including, among other data and as further described in Section 5.3, number of plays of a sound recording, skipped sound recordings, liked sound recordings, unique sound recordings played, session times, location of user access, and return visits.
  66. Use” has the meaning set forth in Section 5.4.
  67. Website” means the website owned and operated by Feed through which Client accesses their Client Account portal for registration and management of Services, having a URL of https://adaptr.com/account
  1. EULA and Privacy Policy
  1. EULA.  In addition to the other requirements in these Standard Terms with respect to End Users, Client will require each End User of a Site accessing any Services or API Content provided by Feed to agree to an End User License Agreement, Terms of Service/Use or similar agreement (each a “EULA”) that informs such End User of the limitations of the End User’s rights with respect to any API Content provided by Feed and such other terms and conditions set forth in these Standard Terms applicable to End Users, including, without limitation, Section 5.9.  Feed will have no obligation to provide API Content to any End User who fails to comply with this Section 2.1.
  2. Privacy Policy.  All information collected by Feed during Client’s registration for the Services and all use of the Services by Client is subject to and governed by these Standard Terms and the Feed Privacy Policy, located at https://feed.fm/legal/privacy.html, which policy is incorporated herein by this reference. With respect to End User Personal Information, Client is the “controller” or “business” and Feed is acting as Client’s “processor” or “service provider,” as those terms are defined under relevant Data Protection Laws. Client shall make a privacy policy available to End Users that complies with applicable Data Protection Laws and covers the End User Personal Information processed by Feed in connection with its provision of the Services.
  1. Services
  1. Standard Services.  Feed will make Technology available to Client so that Client can include a software player (the “Player”) on Client’s Site(s) through which transmissions of API Content can be made to the public on or through the Player embedded on such Site.  In Feed’s sole determination, the Player may include use of Feed Marks to identify Feed as the transmitting entity for API Content (e.g., through the use of a notice such as “Powered by Feed”), and Client shall not, and Client shall require that each End User must not, interfere with or otherwise block or obscure the display of such notice.
  2. Services and API Availability; Support Services.  Feed 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 at support@feed.fm to report concerns with the Services, a Player or the API.  Feed shall use commercially reasonable efforts to resolve promptly any concerns reported via such support contact.  Notwithstanding the preceding sentences of this Section 3.2 and subject to Section 6.3, Client understands that the Services are provided by Feed using networks and services provided or managed by third parties and Feed makes no representations and warranties that the Services will be available to Client or End Users on an uninterrupted basis.
  3. Geofiltering.  Client acknowledges and agrees that Feed may use geo-filtering and other technical measures to limit accessibility to API Content based upon a user’s geographic location as Feed may determine in its sole discretion in order to comply with licensing requirements and applicable Laws.  Feed will have no liability to Client for any geographic restrictions applied to any API Content; provided, however, that Feed will only apply geo-filtering in good faith in light of applicable license restrictions, limitations and rights obtained.
  4. Client Operations; Other Rights.  Notwithstanding any other provision of these Standard Terms, and as between Feed and Licensors on the one hand, and Client and End Users, on the other hand, Client will be solely responsible for all costs, expenses, losses, and liabilities arising from Clients operations, and any services provided to any End User, excluding solely costs and expenses arising from Feed’s delivery of API Content to Client through the Services or any Claims for which Feed owes a duty of indemnification to Client pursuant to these Standard Terms. Except as otherwise provided in these Standard Terms, Client shall be responsible for obtaining and paying for all other licenses, rights, permissions and consents in connection with any Client Site.
  5. Client Account.  Client must create an account (a “Client Account”) with Feed to access the Services and the API Content before receiving such access, and must not share any Client Account details with any third party. The unauthorized sharing of Client Account credentials with any unauthorized party will constitute a material breach of these Standard Terms for which Feed may deny Client the opportunity to cure.  Feed will have the right to immediately terminate these Standard Terms in the event of a breach of this Section 3.5 without any liability to Client.
  1. Payments and Qualifications
  1. Subscription Fee for Standard Services.  
  1. Client shall pay the applicable recurring monthly fee (“Subscription Fee”) that corresponds to Services to be provided in connection with Client’s applicable subscription tier (“Subscription Tier”) as selected by the Client via the Website, which include the following:
  1. the amount of API Content to be Played in any given month;
  2. the number of supported Client Sites;
  3. the number of seat licenses acquired by Client; and
  4. the level of technical support.  
  1. The Subscription Fee shall be payable in advance at the beginning of each calendar month for all pre-purchased Plays of API Content. When you purchase a subscription through the Website (“Subscription”), your payments are processed by our third-party payment processors. We accept various forms of payment, as specified during registration. We do not accept cash or checks. You consent to the collection and use of your payment information by our third-party payment processors in accordance with their terms and conditions and privacy policies. All fees are quoted in, and all payments must be made in, U.S. dollars. If any charge to be made to Client’s credit card is rejected by the issuer of such credit card, Feed will terminate all Services immediately.
  2. During any given Subscription month (each, a “Subscription Term Month”), once you achieve 80% of the maximum number of Plays of API Content that your Subscription Tier allows, Feed will send you an email or a notification via the Client Account portal on the Website notifying you of such usage and the Subscription Fee you will automatically be charged should you exceed such Subscription Tier usage. If you exceed the maximum amount of pre-purchased Plays of API Content that your Subscription Tier allows, you agree that Feed may automatically upgrade you to the next highest Subscription Tier and automatically charge you for the difference in cost between the amount you paid for your then-current Subscription Tier and the amount due for the next highest Subscription Tier or, subject to the Adaptr Qualifications, if you are already subscribed to the highest Subscription Tier, bill you for an additional month of such Subscription Tier and reset your pre-purchased Plays of API Content and the monthly recurring date for your then-current Subscription Term Month as of the date of such new charge. Once you have subscribed to a higher Subscription Tier, either by electing to subscribe to such Subscription Tier or by being automatically upgraded to such Subscription Tier as described above, you will continue to receive the number of Plays of API Content available at such Subscription Tier and be billed the applicable Subscription Fee for such Subscription Tier for each subsequent Subscription Term Month. You may choose to opt out of the automatic upgrade described above prior to your matching the maximum number of Plays of API Content that your Subscription Tier allows; provided that by doing so, Feed will suspend all Client Site access to API Content for the remaining Subscription Term Month upon your achieving the maximum number of Plays of API Content for your then-current Subscription Term Month and you will automatically receive access to API Content beginning on the first day of the following Subscription Term Month, unless you cancel your Subscription.
  3. You may elect to upgrade to a higher Subscription Tier, if available, at any time via the Client Account portal on the Website or by contacting Feed at support@adaptr.com Upon the election of such upgrade, Feed will upgrade you to the next highest Subscription Tier, automatically charge you for the difference in cost between the amount you paid for your then-current Subscription Tier and the amount due for the next highest Subscription Tier, and reset your pre-purchased Plays of API Content and the monthly recurring date for your then-current Subscription Term Month as of the date of such new charge.
  4. You may elect to downgrade to a lower Subscription Tier, if available, at any time via the Client Account portal on the Website. Upon the election of such downgrade, the then-current Subscription Term Month will complete its billing cycle at the then-current Subscription Tier, and at the end of the then-current Subscription Term Month, you will be charged the Subscription Fee for the new lower Subscription Tier and receive access to the number of Plays of API Content available at such Subscription Tier.
  5. For more information on our billing practices, Subscription Fees and Subscription Tiers, please see our https://adaptr.com/pricing.htmlpage.  
  1. Billing Authorization. BY PROVIDING YOUR PAYMENT METHOD AND OBTAINING A SUBSCRIPTION FOR SERVICES, YOU AUTHORIZE FEED (OR ANY OF ITS SERVICE PROVIDERS), AS APPLICABLE, TO CHARGE TO YOUR DESIGNATED PAYMENT METHOD THE APPLICABLE MONTHLY SUBSCRIPTION FEE, AND ANY APPLICABLE SALES, TELECOMMUNICATION, EXCISE, VALUED-ADDED OR SIMILAR TAXES (“TAXES”). THE SUBSCRIPTION FEE IS EXCLUSIVE OF ANY SUCH TAXES.
  2. Subscription Fee Changes. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, WE RESERVE THE RIGHT TO CHANGE OUR SUBSCRIPTION FEES AT ANY TIME IN OUR SOLE DISCRETION. IF WE CHANGE OUR SUBSCRIPTION FEES, THEN WE WILL PROVIDE YOU NOTICE OF THE PROPOSED CHANGE AT LEAST 30 DAYS BEFORE THE CHANGE IS TO TAKE EFFECT. SUBSCRIPTION FEE CHANGES WILL TAKE EFFECT AT THE START OF THE NEXT RENEWAL OF YOUR SUBSCRIPTION FOLLOWING THE DATE OF THE PRICE CHANGE. YOU ACCEPT THE NEW PRICE BY CONTINUING TO USE THE SERVICE AFTER THE PRICE CHANGE TAKES EFFECT. IF YOU DO NOT ACCEPT THE PRICE CHANGE, THEN YOU MAY TERMINATE YOUR SUBSCRIPTION PRIOR TO THE PRICE CHANGE GOING INTO EFFECT.
  3. Automatic Renewal. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, BY PURCHASING A SUBSCRIPTION FOR SERVICES, YOU AGREE THAT YOUR SUBSCRIPTION WILL AUTOMATICALLY RENEW AT THE END OF EACH SUBSCRIPTION TERM MONTH AT THE THEN-CURRENT SUBSCRIPTION FEE AND FOR THE SAME TERM AS THE IMMEDIATELY PRECEDING SUBSCRIPTION, UNLESS AND UNTIL YOU CANCEL YOUR SUBSCRIPTION. NOTWITHSTANDING THE FOREGOING SENTENCES OF THIS SECTION, YOUR SUBSCRIPTION TERM MONTH MAY CHANGE AS DESCRIBED IN SECTION 4.1(c) IF YOU EXCEED THE MAXIMUM NUMBER OF PLAYS OF API CONTENT IN YOUR CURRENT SUBSCRIPTION TIER AND ARE UPGRADED TO A HIGHER SUBSCRIPTION TIER.
  4. Recurring Charges. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, UPON EXPIRATION OF YOUR SUBSCRIPTION, YOU WILL AUTOMATICALLY BE BILLED FOR THE SAME SUBSCRIPTION TIER (OR THE MOST SIMILAR SUBSCRIPTION TIER, IF YOUR PRIOR SUBSCRIPTION TIER IS NO LONGER AVAILABLE) AT THE THEN-CURRENT SUBSCRIPTION FEE PLUS ANY TAXES. YOUR PAYMENT METHOD WILL BE CHARGED THE SUBSCRIPTION FEE FOR THE RENEWAL TERM OF YOUR SUBSCRIPTION EVERY 30 DAYS.
  5. Cancellation and Refunds. YOU MAY CANCEL YOUR SUBSCRIPTION FOR SERVICES AT ANY TIME BY FOLLOWING THE PROCESS DESCRIBED  https://adaptr.zendesk.com/hc/en-us/articles/360052801231-Cancel-subscriptionIF YOU CANCEL YOUR SUBSCRIPTION, YOU WILL CONTINUE TO RECEIVE SERVICES FOR THE REMAINDER OF YOUR SUBSCRIPTION TERM MONTH OR UNTIL YOU REACH THE MAXIMUM NUMBER OF PLAYS OF API CONTENT COVERED BY YOUR SUBSCRIPTION TIER.  FEED DOES NOT OFFER REFUNDS FOR ANY SUBSCRIPTION FEE PAID FOR ANY PERIOD.
  6. Certification of Qualifications. Following each calendar month of the Term, an officer of Client must affirm Client’s continued compliance with the qualifications specified on the Feed qualifications page available here (collectively, the “Adaptr Qualifications”). Such monthly certification must be done via the click-through certification process available on the Website in order for Client to continue receiving Services and access to the API and API Content for the upcoming month. Such report shall be certified as accurate by an officer of Client and submitted to Feed electronically via the click-through certification process on the Website within [five (5)] business days following the end of each calendar month. Client’s failure to provide certification as required in this Section 4.7 will be deemed a material breach of these Standard Terms not curable by the terms of Section 8.3, which will entitle Feed to terminate these Standard Terms and immediately cease delivery of API Content and Services upon such breach.
  1. Ownership and Licenses
  1. Feed Ownership.  As between the parties, Feed owns, and will continue to own, all right, title, and interest, including all Intellectual Property Rights, in and to: (a) its pre-existing software, Technology, Player, and API; (b) any trademarks, service marks and related branding, including registrations (if any) thereof, relating to the Services (including, specifically, the Feed and Adaptr names that the parties intend to feature on a Site or Player), the Player or the API; (c) all Feed 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 (d) all Technology developed by Feed in connection with the performance of these Standard Terms, including, without limitation, any software and other technology developed for use in connection with the operation of the Player, the API or the delivery of any API Content (collectively, the “Feed Rights”), and Client hereby irrevocably assigns and agrees to assign any rights Client may have in any of the foregoing, and agrees to execute all documents necessary to comply with the provisions of this Section 5.1.  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 is solely responsible for the prosecution, enforcement, and defense of Feed Rights.
  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: (a) Client’s pre-existing software and technology (if any); (b) the Client’s logo, and all other trademarks, service marks and related branding, including registrations (if any) owned by Client and featured on a Site (but not any trademark, service mark and related branding, including registrations (if any) thereof relating to the Services (including, specifically, the Feed name, which the parties intend to feature on a Site), the Player or the API); (c) all software and technology developed by Client to permit the integration of the Player or API into Client’s own software and technology (excluding all Feed Rights) (collectively, “Client Software”); and (d) all End User Personal Information (clauses (a) through (d) of this Section 5.2 are collectively, the “Client Rights”).  As between the parties, Client is solely responsible for the prosecution, enforcement, and defense of the Client Rights.  For the avoidance of doubt, Client owns all right, title, and interest, including all Intellectual Property Rights, in any new Client software and technology that is independent of the integration of the Player or API into Client’s own software and technology (“Excluded Client IP”).
  3. Usage Data.  As between the parties, Feed owns and shall continue to own, all right, title, and interest in and to all Usage Data associated with End User De-Identified Information. Except as otherwise permitted by applicable Data Protection Laws and these Standard Terms, Feed shall not retain, use, or disclose End User Personal Information for any purpose other than for performing the Services and shall not further collect, sell, or use End User Personal Information except as necessary to perform the Services. Client hereby permits Feed to use, collect and share with Licensors, the following Usage Data with respect to Client and its End Users’ usage of the API, API Content, and Technology provided by Feed and Licensors as part of the Services:
  1. Client entity name and category of service (e.g., fitness, mobile game, etc.);
  2. The Client Account number;
  3. Time period for which report delivered;
  4. Title of each item of Content transmitted via the API during the measurement period for Client;
  5. Location of recipient of each transmission of an item of Content by ISO 3166-1 alpha-2 Country Code, for Client;
  6. Total number of Plays of each item of Content for Client;
  7. Total number of Plays of all items of Content for Client; and
  8. Platform-specific data for Client, to the extent known by Feed in the ordinary course of business, including, but not limited to, the number of Client’s monthly End Users, the number of Streams per End User and the number of song downloads per End User.  
  1. Client License.  Client hereby grants to Feed, and its agents, a worldwide, non-exclusive, fully paid-up, royalty-free license during the Term of these Standard Terms to reproduce, distribute, publicly perform, communicate to the public, publicly display, and otherwise use and exploit (collectively, “Use”) Client Rights for the sole purpose of Feed’s performance of the Services or to otherwise exercise Feed’s rights and obligations under these Standard Terms.  For the avoidance of doubt, Client will be solely responsible for securing licenses from any third parties owning rights in or to any Client Rights, including on a through-to-the-audience basis, to permit Feed to Use Client Rights as contemplated in these Standard Terms.  Client hereby grants Feed a worldwide, non-exclusive, fully paid-up, royalty-free, perpetual, irrevocable, assignable, and sublicensable license to incorporate Client Software (but not Excluded Client IP) in any Technology, provided such Client Software and the Technology in which it is incorporated is used to publicly perform by means of a digital audio transmission or communicate to the public API Content or Client Rights.
  2. Feed License.
  1. Subject to Client’s acceptance and compliance with the terms and conditions of these Standard Terms, Client is hereby granted, during the Term a limited, nonexclusive, nonassignable (except as authorized herein), right to access through the Feed website, the Player and to use the Services solely for the purpose of integrating the Player into a Site to display, publicly perform, communicate to the public, and transmit the API Content on a Site directly to End Users (but not in any business or other public establishment whatsoever) solely as transmitted by Feed and without any alteration to, or insertion of any pre-roll, interstitial, or post-roll advertising, in Feed’s transmissions without Feed’s prior written consent.
  2. Subject to the terms and conditions of these Standard Terms and during the Term, Client is hereby granted a limited, nonexclusive, non-sublicensable, nonassignable (except as authorized herein), freely revocable license to access and use the Technology and API solely for the purposes of accessing API Content for the personal, noncommercial use and benefit of End Users as authorized in these Standard Terms, and which license shall be limited to the following activities:
  1. on-demand, interactive transmissions of API Content;
  2. when authorized by Licensors, non-interactive digital audio transmissions of certain API Content that satisfy the conditions set forth in 17 U.S.C. § 114(d)(2)(C), including through opaque (i.e., not identifiable to the End User) limited and temporary caching of content on an End User’s Approved Device, solely where such caching is at the direction and control of Client or Feed and not the End User, to enable use in low-bandwidth or no-bandwidth scenarios, and where such locally stored content is disabled within 31 days of an End User’s last connection to a Client Site;
  3. solely in connection with subscription offerings, with End User Accounts and End Users in Good Standing, reproductions (other than temporary buffer copies) of API Content on an End User’s Approved Device at the direction of the End User, where such reproductions are disabled within 31 days of the End User’s last connection to a Site or immediately upon expiration of the End User’s subscription;
  4. when authorized by Licensors, reproductions of certain API Content in audio-only or audiovisual works, provided such audio-only or audiovisual works do not: (A) change the fundamental character of such API Content; (B) use such API Content in a derogatory, offensive, harmful or abusive manner or with any pornographic material; or (C) imply an endorsement of the creator of such audio-only or audiovisual work or Client by any Licensor, or any artist, songwriter or composer of API Content;
  5. when authorized by Licensors, creation of playlists of certain API Content for End User’s personal consumption and not for the purposes of selling to the public any phonorecords, either as embodied on physical media (CDs, vinyl, cassettes, etc.) or as a standalone digital phonorecord delivery;
  6. when authorized by Licensors, cross-fading API Content to allow for continuous playback and, in connection with fitness apps, slowing or speeding up the original beats per minute of API Content a certain percentage specified by Feed (pursuant to rights granted to Feed by Licensors), provided that: (A) the foregoing does not change the fundamental character of such API Content; and (B) End Users are not able to remix or rearrange the sequence of notes or sounds within any API Content; and
  7. transmitting, communicating to the public, and publicly performing and publicly displaying audio-only and audiovisual content in timed relation to API Content transmitted, communicated to the public or publicly performed by Feed via the API, provided that Client does not reproduce on computer servers owned or controlled by Client or otherwise any combined works embodying API Content.
  1. Subject to Client’s acceptance and compliance with the terms and conditions of these Standard Terms, Client is hereby granted, during the Term, a limited, nonexclusive, nonassignable (except as authorized herein), royalty free right and license to publicly display the logos, trade names, trademarks, and service marks of Feed (“Feed Marks”) for the sole purpose of identifying Feed as the source of API Content, subject to the following conditions:  (i) Client shall keep intact any proprietary notices of Feed; (ii) Client shall comply with Feed’s trademark use guidelines; (iii) Client acknowledges that all goodwill generated through the use of the Feed Marks will inure to the benefit of Feed; (iv) Client hereby assigns and agrees to assign to Feed any and all goodwill generated through its use of the Feed Marks, without any payment or other consideration to it, and further agrees to take all actions necessary to effect such assignment; and (v) upon termination of these Standard Terms, Client shall cease using the Feed Marks.
  2. Reservation.  All rights not expressly granted to Client and End Users herein are reserved by Feed and any third parties providing, owning or controlling rights in API Content (such as sound recording copyright owners and musical work copyright owners and each of their authorized or designated agents).  Feed may, at any time, change the specifications or restrict or limit access to the API in Feed’s sole discretion, without any liability to Client and End Users (including restricting or limiting the number, frequency and type of calls made by Client and End Users to the API).  Client and End Users’ right to access and use the API is a privilege, which may be revoked by Feed at any time, with or without notice.  Client acknowledges and agrees that Feed may use any technological means to enforce the use rights and licenses granted herein and will inform End Users of Feed’s rights in Client’s EULA with End Users, where applicable.  Notwithstanding anything to the contrary, Client hereby grants Feed the right to crawl, test or otherwise monitor a Site for the purpose of verifying Client and End Users’ compliance with the use rights and licenses granted hereunder, and that Client will not block, attempt to block or otherwise interfere with such crawling or monitoring.  Client will indemnify, defend, and hold Feed harmless from and against any and all claims brought against Feed by an End User for Feed’s exercise of any rights in the immediately preceding sentence.
  3. Health and Fitness Services.  If Client’s service offering on any Site includes guided or instructor-led fitness or workout content and/or classes, and is not a service offering that is eligible for transmissions pursuant to 17 U.S.C. § 114, the following will also apply:
  1. Each class or workout that incorporates sound recordings provided by Feed must have a fitness instructor speaking or other spoken guidance or instruction played during a substantial portion of the class or workout;
  2. A Site may allow End Users to search for classes or workouts that contain a particular artist, album or track; provided that such End Users shall not be able to select the tracks played during a class or workout;
  3. An End User shall only be able to play sound recordings as part of a class or workout. There shall be no ability for such End Users to skip to any track, or begin a class or workout at any track, unless the End User previously paused the class or workout immediately prior to the commencement of such track; and
  4. An End User shall not be able to separate the instructional elements of a class from the musical content, or be able to pause, fast-forward, or rewind one without the other.  End Users shall have no ability to manipulate classes beyond pause, fast-forward and rewind.  End Users may only be able to adjust the volume of the instructor such that the instructor’s voice is still audible to the ordinary person with normal hearing; but an End User will be permitted to make inaudible or lower substantially the volume of any sound recording transmitted simultaneously with an instructor’s voice.
  1. Copyright Notices; Attribution. Client shall promptly and clearly display any copyright notices and advisories, including without limitation, parental advisory warnings, as provided by Feed or Licensors, in connection with the API Content in such a manner that they can be readily viewed by End Users before use of such API Content. Client shall not cover, impair or alter in any way any watermark (or similar item) in API Content. Client shall display simultaneously or make available for simultaneous display with the Performance of each item of API Content: (i) the title of the underlying musical composition; (ii) the name of the associated album; (iii) the name of the musical artist performing such composition; (iv) space permitting in each case as provided by Feed or Licensors, and as technologically feasible, the name of the record label releasing such album; and (v) to the extent technologically reasonable, the trademarks of Licensors of sound recordings, to the extent embodied in Other Materials that are provided to Client by Feed within Content Packages for Client’s use in accordance with these Standard Terms.
  2. Removal Rights.  Subject to the availability of Content from Licensors and in the sole discretion of such Licensors, Client shall remove from any Site any items of Content identified by Feed as Content that must be removed (“Removed Content”) within 48 hours of written notice from Feed (and within 24 hours of such notice with respect to any use of an item of Content in audiovisual content in time relation to such item of Content). If an End User has conditionally downloaded Removed Content from Client as permitted in these Standard Terms, then such Removed Content must be disabled for such End User immediately upon such End User’s next connection to any Client Site.
  1. Integrity of Content.  Client is not permitted to record, modify, edit, reproduce, transmit, retransmit, remix, alter, repurpose, or otherwise perform any API Content included as part of the Services, including, whether through the Player or otherwise, in whole or in part, without the prior written consent of Feed, which consent may be withheld for any reason or for no reason.  Further, Client is not permitted to share with or transfer to others any API Content included as part of the Services. The unauthorized reproduction or distribution of API Content is expressly prohibited and is a violation of Law.  Client will also not insert into any API Content delivered via a Player any content (e.g., audio advertisements) not authorized in writing by Feed. Client acknowledges that the Services and the sequence in which API Content is performed as part of the Services is proprietary information of Feed (and is determined at Feed’s discretion) and will not be recorded, codified in writing or any fixed media or medium, or disclosed to any third party other than through a third party’s ability to hear such API Content by receiving authorized transmissions through a Player.  Client will protect all copyright owners’ rights in the API Content and such copyright holders reserve all rights in the API Content that are not granted to Client and/or End Users under these Standard Terms. Client shall implement measures to ensure that Streams are not capable of being easily copied by End Users. If End Users are able to record and copy Streams without the express authorization of Feed, then Feed may cease all Streams to Client and/or End Users until such record or copying capabilities are prohibited.
  2. 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, or the operational and security mechanisms of the Services and API.  Further, Client agrees that it will not:
  1. 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;
  2. obtain access to the Services or API without all necessary authorization;
  3. include any viruses, worms, Trojan horses or any other harmful code that could, in Feed’s sole discretion, affect the Services or API;
  4. copy, distribute, reproduce, sell, resell, lend, lease, rent, use, or allow access to the Services, API or API Content except as explicitly permitted under these Standard Terms, or permit any third party, including Site Users, to do any of the foregoing;
  5. aggregate the API Content (including Metadata) to create databases, or any other compilations of API Content, or use the API Content to populate any other sites, applications or services;
  6. interfere or attempt to interfere in any manner with the proper functioning of the Services or API;
  7. use the Services or API for any illegal or unauthorized purpose, including the unlawful distribution of API Content or the infringement, violation or misappropriation of any third party’s Intellectual Property Rights, name and likeness or privacy/publicity rights, or other proprietary rights;
  8. remove, obscure, or alter any notice of patent, copyright, trademark or other proprietary right appearing in the Services, whether of Feed or any other third party;
  9. access any undocumented feature of the API, or use any documented feature of the API other than for its intended purpose;
  10. impose or purport to impose any obligation on any person, or grant or purport to grant any right, power or authority to itself or any other person, that would be inconsistent with these Standard Terms, and Client agrees that any such obligation, right, power or authority purportedly imposed or granted shall be null and void;
  11. attempt to conceal its identity or a Site’s identity when requesting authorization to use the API;
  12. use the Services or API in a manner that adversely impacts the stability of Feed’s servers or the Services or adversely impacts the behavior of other third-party customers or partners of Feed or applications using the API, in Feed’s sole determination;
  13. use the API to develop an application to automate or assist with synchronizing API Content in timed relation with external media (such as slide shows, video, or games);
  14. to provide background music to or integrate the API with any applications or websites, other than a Site;
  15. use the API in such a way that knowingly harms, misuses, or brings into disrepute the Services or Feed’s (or any of its other customers’ or licensors’) brands, trademarks, logos or names;
  16. 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 Content;
  17. reproduce, or allow Site users to reproduce, any API Content on any form of storage media other than Approved Devices and only as Offline Copies;
  18. distribute any application online through one or more website(s), including a Site, that is/are in any way similar to the Services or use the Feed Marks, or words confusingly similar or describing Feed’s products or services, as the registered URL for a Site, except as expressly approved in writing by Feed;
  19. use an unreasonable amount of bandwidth, storage or processing power as determined by Feed in its sole discretion, in the use of the API, including in a manner that exceeds any quota limitations specified by Feed;
  20. publish as part of an advance playlist or otherwise any of the sound recordings transmitted through a Player for public performance as part of the Services through a Site; and
  21. use the API or the Services to publicly perform or publicly display any 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 these Standard Terms;
  22. allow a Site to 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) depict sexually explicit images; (iii) promote violence, discrimination or illegal activities; (iv) incorporate any materials, or encourage or endorse Site users to post or upload any materials, that infringe or assist others to infringe on any Intellectual Property Right; (v) engage in the endorsement of political positions, political candidates, religious causes or certain sensitive products or services (e.g., tobacco, firearms or pornography), or use the Services to display or imply any such endorsement by music artists or Content providers or the copyright owners thereof; (vi) engage in the sale or advertisement of pornography, tobacco, firearms, personal hygiene products (but excluding soaps, shampoos, perfumes, lotions and toothpastes), or other objectionable products with which artists typically do not wish to be associated; (vii) engage in spamming or other advertising or marketing activities that violate any applicable Laws, regulations or generally-accepted advertising industry guidelines; (viii) engage in any activity that is malicious, threatening or harmful to any person or entity, including an activity that may be libelous, blasphemous, or defamatory, obscene, harassing or discriminatory based on race, color, sex, gender identity, religion, nationality, ethnic or national origin, marital status, disability, sexual orientation, age or any other protected class pursuant to U.S. federal or any state laws; (ix) display or imply any kind of product, goods or services endorsement by music artists or Content providers or the copyright owners thereof; (x) 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; (xi) permit Site users to reproduce any API Content transmitted as part of the Service; (xii) except for API Content containing commercially released sound recordings and associated artwork, display, distribute, perform, promote, publish, reproduce, transmit, or otherwise exploit any content that is blasphemous, defamatory or obscene; (xiii) contain content or engage in activities that are intentionally derogatory or denigrating with respect to Licensors, their affiliates, any Licensor artist, the Recording Industry Association of America or the music industry; or (xiv) contain content or engage in activities that are objectionable to any Licensor or any artist of any Licensor based upon reasonable grounds of which Feed may notify Client from time to time.
  23. without the prior written consent of Feed and Licensors, take any action (including, without limitation, the streaming of any advertisement of any nature during or associated with the viewing or Streaming of any Content), directly or indirectly, so as to imply an endorsement, sponsorship or commercial tie-in of any product, good or service by any Licensors or the artists whose sound recordings or musical works are provided by such Licensors;
  24. facilitate the access, storage, distribution or other exploitation of Content except as expressly permitted by these Standard Terms (for the avoidance of doubt, allowing the bundling or reselling of Streams via the Services is expressly prohibited);
  25. as determined by Feed in its sole discretion, reasonably be capable of misleading an End User of a Site into believing that: (i) such End User is interacting directly with the Services when interacting with a Site; or (ii) a Site was created by or is endorsed by or affiliated with Feed;
  26. allow a Site to include sound recordings from other third-party sources, including, by way of example and not limitation, sound recordings contributed by End Users, an End User’s local library, a cloud storage service, subscription streaming service or an alternative API, in each instance from or through the Site;
  27. focus on a specific musical artist or specific set of musical artists, or feature or promote Content from one Licensor more prominently or consistently than Content from any other Licensors;
  28. allow a Site program, class or station to contain API Content from a single artist, absent Feed and any applicable Licensor’s prior written consent, which may be withheld for any or no reason;
  29. for any Client Site that features a limited catalog of sound recordings, use or feature less than 10 sound recordings from at least three (3) artists, all of which must be used and featured with equal prominence (for the avoidance of doubt, nothing herein will prohibit Client from offering programs, classes or stations of a single artist where the artist and the artist’s label have granted specific authorization for such program, class or station); notwithstanding the foregoing, where artist names and sound recording titles are specified, they must be displayed clearly and conspicuously and each with equal prominence;
  30. allow End User Accounts to have more than five (5) registered and authenticated Approved Devices at any one time or allow a given registered Approved Device to be replaced more frequently than once every three (3) months;  
  31. to the extent authorized herein, allow the delivery of Offline Copies other than to an End Users’ Approved Devices previously registered to such End Users’ End User Account;
  32. allow any Site to Stream, or allow any End User to access Streams from any device other than Approved Devices and, where a Client Site is a subscription service, allow such Streaming unless an End User is logged into such End User’s End User Account that is in Good Standing;  
  33. allow more than one instance of access to any Client Site via a particular End User Account at any one time (for example, without limitation, if two individuals attempt to access any Client Site from the same End User Account, Client shall immediately block one attempt);
  34. except with respect to video-based content related to health, fitness, wellness, yoga, mindfulness, meditation, mobile and online games, augmented reality or virtual reality applications, allow a Site to include commercially produced and exploited video-based content, unless otherwise agreed by Feed and Licensors in their sole discretion and in writing (email to suffice); and
  35. create, distribute or otherwise make available (whether directly or through others) any advertising, press release, promotional material or other publicly available statement or material with respect to Feed, the Services, the API, API Content, or any Client Site, without Feed’s prior written approval in each instance (email to suffice).
  1. Rights Clearance for Content.
  1. Reproductions.  Subject to Client’s representations and warranties in Section 6.2, Feed will be responsible for clearing the rights to, and paying all royalties for, all sound recordings embodied in API Content (and the musical works embodied in such sound recordings) that are reproduced solely for the purposes of facilitating digital audio transmissions of sound recordings in API Content via the Services on a Site.  Client acknowledges that Feed will not be securing mechanical licenses for any musical works embodied in sound recordings in API Content publicly performed on a noninteractive basis as part of the Services under the generally accepted industry position that mechanical licenses for the reproduction of musical works are not required when such musical works are embodied in sound recordings transmitted to the public as part of a noninteractive service. Feed may terminate these Standard Terms upon 10 business days’ notice if Feed becomes obligated to obtain mechanical licenses and pay royalties for the reproduction of musical works embodied in sound recordings transmitted on a noninteractive basis.
  2. Public Performances and Communications to the Public.  Feed 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 API Content solely as part of the Services made available through a Site, but not any other sites or as part of any offering other than the Services, and the musical works embodied in such sound recordings, including by entering into license agreements with PROs or copyright owners for such communication to the public and/or public performance.
  1.  Mandatory Contract Provisions.  In addition to the other requirements in these Standard Terms with respect to End Users, Client will include in each EULA with its End Users, provisions substantially similar to the following (with the bracketed language representing Client’s business entity name, Client’s service and the name of Client’s EULA, where applicable, which language would need to be updated in Client’s EULA with its End Users):
  1. By installing, copying, accessing or otherwise using the [Client service] or [Client] software, you acknowledge and agree that you have read and understood this [EULA] and agree to be bound by its terms and conditions.  If you are unwilling or unable to comply with the terms of this [EULA], you are not authorized to use the [Client service].
  2. You agree not to reverse engineer, decompile, disassemble, or otherwise tamper with any security components, usage rules or other protection measures applicable to the [Client service] and will follow all applicable Laws in your use of the [Client service].  
  3. You agree not to make use of content provided on or through the [Client service] in a manner that would infringe the rights of a third party or otherwise use the [Client service] in any manner that infringes the intellectual property rights or other rights of [Client], and of [Client’s] licensors or any third party.
  4. You acknowledge that you are authorized to use the content provided by [Client] through the [Client service] solely for your own personal, non-commercial use and you are not authorized to reproduce and distribute any content provided by [Client] in the form of phonorecords (either physical or digital) or to offer any such content by sale, rental, lease or lending to any person.
  5. [Client] and its licensors of sound recordings and the musical works embodied therein, may, from time to time, remove any sound recordings and musical works from [Client service] without notice and without any liability to you.
  6. If the [Client service] includes a subscription offering, you must sign up for an account with a unique user name, password, and if applicable, billing details, in order to be allowed to access the [Client service] subject to this [EULA], and you must remain in Good Standing (as defined below) in order to continue to receive content provided by [Client] via the [Client service]. For purposes of this [EULA], “Good Standing” means that you: (i) reside in a country of the [Territory] and your billing details, if applicable, are validated and correspond to such country of the [Territory]; (ii) have fully and timely paid all fees with respect to your user account for the [Client service], where applicable; and (iii) comply with all terms and conditions in this [EULA].
  7. THE SOUND RECORDINGS AND MUSICAL WORKS PROVIDED BY [CLIENT] ARE PROVIDED “AS-IS” AND “AS-AVAILABLE” WITHOUT WARRANTIES OF ANY KIND FROM [CLIENT] OR ITS LICENSORS.  TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, [CLIENT] AND ALL LICENSORS OF CONTENT PROVIDED BY [CLIENT] DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.  NEITHER [CLIENT] NOR ANY LICENSOR OF SOUND RECORDINGS, OR MUSICAL WORKS EMBODIED IN SOUND RECORDINGS, OR ANY RELATED ALBUM ARTWORK FOR SOUND RECORDINGS, WARRANTS THAT THE SOUND RECORDINGS, OR MUSICAL WORKS EMBODIED IN SOUND RECORDINGS, OR ANY RELATED ALBUM ARTWORK, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
  8. NEITHER [CLIENT] NOR ANY LICENSOR OF SOUND RECORDINGS, OR MUSICAL WORKS EMBODIED IN SOUND RECORDINGS, OR ANY RELATED ALBUM ARTWORK, WILL BE LIABLE FOR ANY INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING FROM THE USE OF THE [CLIENT SERVICE] OR ANY CONTENT, INFORMATION, MATERIALS OR PRODUCTS PROVIDED BY [CLIENT], INCLUDING ANY SOUND RECORDINGS, OR MUSICAL WORKS EMBODIED IN SUCH RECORDINGS OR RELATED ALBUM ARTWORK MADE AVAILABLE TO YOU VIA THE [CLIENT SERVICE], OR FOR ANY DAMAGES IN EXCESS OF THE AMOUNT PAID FOR THE SPECIFIC ITEM OF CONTENT GIVING RISE TO THE APPLICABLE CLAIM FOR DAMAGES.
  9. The licensors of [Client] for the rights in musical works and sound recordings (through multiple levels of licensing) are intended third-party beneficiaries of the [EULA] between [Client] and [End User].
  1. Notification of Direct Licenses.  Client will promptly notify Feed if Client enters into a direct license agreement during the Term with any sound recording or musical work copyright owner having more than a 10% market share as reported by Nielsen SoundScan, Music & Copyright, Billboard magazine or any other reputable market reporting service for the U.S. music industry during the Term (a “Major Licensor”) for the digital audio transmission or distribution of sound recordings or musical works owned or controlled by such Major Licensor.  Such notification will not be deemed Proprietary Information of Client and Feed may, if contractually obligated to do so, notify the same or different Major Licensor(s) of Client’s direct license agreement.  Feed may cease providing API Content to Client and End Users if required to do so pursuant to an agreement with one or more of its licensors.  
  1. Representations and Warranties; Limitation of Liability
  1. Mutual Representations and Warranties.  Each party represents and warrants to the other party that:  (a) it has the full corporate right, power, and authority to enter into these Standard Terms; (b) the person entering into these Standard Terms on behalf of the party is authorized to do so, including by clicking “I Accept” in the event the these Standard Terms are made available for electronic acceptance; (c) the execution and performance of the obligations and duties of these Standard Terms 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 (d) when executed and delivered (whether in hard copy or electronically) by such party, these Standard Terms will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
  2. Additional Client Representations and Warranties.  Client further represents and warrants to Feed that:
  1. It resides in a country in the Territory;
  2. it will comply at all times with these Standard Terms and all other terms governing Client’s use of the Services and API;
  3. it has all necessary rights in the Client Rights to grant the licenses set forth herein and that neither the Client Rights nor Feed’s use thereof, infringes, or will infringe, any Intellectual Property Rights or other proprietary rights of a third party, and that no fees or payments will be payable by Feed to any third party for any Client Rights Used by Feed pursuant to these Standard Terms;
  4. each Site, and Client’s use of the API Content on any Site, will comply with all applicable local, state, national and international laws and regulations, including without limitation, Laws related to Intellectual Property Rights and other Laws protecting proprietary rights, Data Protection Laws, and all applicable export control Laws and regulations and country-specific economic sanctions implemented by the United States Office of Foreign Assets Control; and
  5. it acknowledges that unauthorized reproduction or distribution of API Content is expressly prohibited and may violate applicable Law.
  1. Disclaimer.  EXCEPT AS SET FORTH ABOVE, FEED MAKES NO 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.  TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, FEED AND ITS AFFILIATES, PARTNERS AND SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS.  NO ADVICE OR INFORMATION, EITHER ORAL OR WRITTEN, OBTAINED BY CLIENT FROM FEED, OR ANYONE ACTING ON BEHALF OF FEED, OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.  FEED DOES NOT WARRANT OR GUARANTEE THAT THE SERVICES OR API WILL OPERATE UNINTERRUPTED OR FREE FROM ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DOES NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.  CLIENT UNDERSTANDS AND AGREES THAT IT ACCESSES, DOWNLOADS OR USES THE SERVICES AND API AT ITS DISCRETION AND RISK, AND THAT IT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS PROPERTY (INCLUDING ANY COMPUTER SYSTEMS USED IN CONJUNCTION WITH THE SERVICES) OR LOSS OF DATA THAT RESULTS FROM ACCESSING, DOWNLOADING OR USING THE SERVICES OR API.
  2. 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 (a) 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 (b) DAMAGES IN EXCESS OF ALL AMOUNTS PAID BY CLIENT TO FEED DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CAUSE OF ACTION.  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.  The provisions of this Section 6.4 are applicable to the fullest extent permitted by Law.
  1. Confidentiality.  
  1. Each party (a “Receiving Party”) agrees that the business, technical, and financial information it obtains from the other party (a “Disclosing Party”) is the confidential property of the Disclosing Party (“Proprietary Information”).  Except as expressly allowed in these Standard Terms, a Receiving Party will hold in confidence and neither disclose nor use any Proprietary Information of a Disclosing Party except for the purposes of performing under or enforcing these Standard Terms.  A Receiving Party’s confidentiality obligation shall not apply to information it can document (a) was publicly known and made generally available in the public domain prior to the time of disclosure; (b) becomes publicly known and made generally available after disclosure through no action or inaction of the Receiving Party; (c) 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; (d) 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 (e) 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.  
  2. These Standard Terms shall be the Proprietary Information of Feed, provided that Feed will not disclose the financial provisions of these Standard Terms in a manner that identifies Client as the counter party to these Standard Terms without Client’s prior approval, except as otherwise provided for in these Standard Terms.  
  3. A disclosure by each of the parties, as Receiving Party, of Proprietary Information of the other party, as Disclosing Party, (a) in response to a valid order by a court or other governmental body, (b) as otherwise required by Law, or (c) in the case of Feed, to a Licensor of rights in Content for the purposes of complying with a license agreement to provide Content to Client, shall not be considered to be a breach of these Standard Terms by such Receiving Party or a waiver of confidentiality for other purposes; provided, however, such Receiving Party shall, in the case of a disclosure required under clauses (a) or (b) of this sentence, provide prompt prior written notice thereof to such Disclosing Party to enable such Disclosing Party to seek a protective order or otherwise seek to prevent such disclosure.
  4. Notwithstanding any other provisions of these Standard Terms, Feed may disclose the identity of Client to any of Feed’s licensors or service providers, such licensors or service providers may contact Client directly and Client agrees to such contact.  
  1. Term and Termination
  1. Term.  These Standard Terms will take effect on the Effective Date and will remain in force thereafter during the Initial Term indicated via the Website during the Client Account creation process (or for an initial period of one calendar month if no term is specified via the Website during the Client Account creation process) (the “Initial Term”) unless earlier terminated in accordance with these Standard Terms. At the expiration of the Initial Term, these Standard Terms shall automatically renew for additional one (1)-month 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.
  2. Termination by Feed.  
  1. Feed may terminate these Standard Terms at any time upon 30 days’ written notice to Client if there is a material change in the reproduction, distribution, communication to the public or performance fees that Feed is required to pay to any copyright owners of sound recordings or musical works, either directly or through an agent or PRO, including, but not limited to, SoundExchange, Inc. or any successor entity thereto.
  2. If Client takes any action or omits to take any action in breach of these Standard Terms, or if Client becomes, at any point during the Term, an entity against which any Licensor or an affiliate of such Licensor has an actual claim, or bona fide potential claim, arising out of the unauthorized (and not otherwise permitted by Law) recording, manufacturing, distributing, communicating to the public, selling, reproducing (or other use) of any Content or other property or other tangible or intangible rights owned or controlled by, or granted to, any Licensor or an affiliate of such Licensor, or an entity against which any other licensor of musical works or sound recordings may have a similar actual claim, or bona fide potential claim, then Feed may immediately cease offering and making available API Content to Client via the Services without liability or advance notice to Client.
  1. Termination for Cause.  Either party may terminate these Standard Terms upon written notice to the other party if: (a) the other party is in material breach of any term, condition or provision of these Standard Terms, and such breach is not cured within 30 days after the non-breaching party gives written notice of such breach, except in the case of non-payment of fees by Client, the cure period will be 10 days; or (b) the other party: (i) terminates or suspends its business; (ii) 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 (iii) 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 8.3, Feed may terminate these Standard Terms immediately should any breach of these Standard Terms by Client or any action undertaken by Feed in performance of its obligations under these Standard Terms subject Feed to any Claim for copyright infringement.
  2. Effect of Termination.  Upon any termination or expiration of these Standard Terms, (a) all licenses granted under these Standard Terms shall cease and Client and all End Users shall cease using and accessing the Player and API; (b) a Receiving Party shall, upon a Disclosing Party’s request, return or destroy, all Proprietary Information of the Disclosing Party then in such Receiving Party’s possession and control, except that Feed may retain archival copies of Client’s Proprietary Information for a period of up to seven (7) years provided such Proprietary Information is used solely as otherwise permitted under these Standard Terms; and (c) Client shall pay to Feed within 30 days of termination all amounts due, if applicable.
  3. Survival of Terms.  Notwithstanding any termination or expiration of these Standard Terms, all terms and conditions of these Standard Terms which by their terms or their nature should survive any such termination or expiration, including, without limitation, Sections 1, 4, 5.1, 5.2, 5.3, 6, 7, 8.4, 8.5, 9, 10 and 11 shall so survive.
  1. Indemnification
  1. Client.  Client agrees to indemnify, defend, and hold harmless Feed, its directors, officers, employees, and agents, and Licensors, and defend any action brought against same with respect to any third-party claim, demand, cause of action, debt or liability (collectively, a “Claim”), including reasonable attorneys’ fees, to the extent based upon a Claim arising from: (a) the operation of a Site; except to the extent Feed is obligated to indemnify Client for any Claim pursuant to Section 9.2; (b) any unauthorized uses of API Content; or (c) Client’s breach of any of its representations, warranties, or covenants made in these Standard Terms.
  2. Feed.
  1. Subject to Client’s compliance with the terms and conditions of these Standard Terms, Feed 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 a Claim: (i) by a copyright owner alleging that the digital audio transmission, public performance, communication to the public, or public display of API Content made through the Services on a Site and in the Territory infringes the Intellectual Property Rights of such copyright owner and such infringement is not due to a failure of Client to comply with the terms and conditions of these Standard Terms or a failure of any End User to comply with the terms and conditions of the Client EULA pursuant to Section 5.9, and in the case of API Content, strict compliance with all restrictions, limitations, and covenants related thereto; or (ii) that the Player or API infringes or violates the Intellectual Property Rights of third parties and such infringement or violation is not due to a failure of Client to comply with the terms and conditions of these Standard Terms, End User to comply with the terms and conditions of the Client EULA pursuant to Section 5.9, or Client or any End User to use the most current version of the Player provided by Feed.
  2. In the event of an infringement Claim against Client with respect to the Player or API, or in the event Feed believes such a Claim is likely, Feed may, at its option (i) appropriately modify or substitute the Player or API licensed hereunder, so long as such modification or substitution does not materially alter the functionality of the Player or API; 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 shall have the right to terminate these Standard Terms and Client and End Users’ licenses hereunder without any liability to Client or End Users.
  3. Feed shall have no obligation or liability for (i) use of the Player or API other than the then-current, unaltered version of the Player or API, unless the portion giving rise to the Claim is also in the then-current, unaltered version; (ii) use, operation or combination of the Player or API with non-Feed programs, data, equipment, documentation or marks if such Claim would have been avoided but for such use, operation or combination; (iii) Client’s activities or its agent’s activities, or the activities of any End User, after Feed has notified Client that it believes such activities may result in a Claim; (iv) compliance with Client’s designs, specifications or instructions; or (v) modification of the Player or API by Client or End Users if such Claim would have been avoided but for such modification.
  4. The obligations set forth in this Section 9.2 shall constitute Feed’s entire liability and Client’s sole remedy for any breach of Sections 5.8(a) and 5.8(b) or any actual or alleged infringement claim.
  1. 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. 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 fully 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.
  1. Dispute Resolution
  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 these Standard Terms (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.
  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.
  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.
  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 these Standard Terms 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 these Standard Terms to the maximum extent that it is enforceable.
  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.
  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.
  1. Miscellaneous
  1. Assignment/Binding Agreement.  Either party shall have the right to assign these Standard Terms 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, these Standard Terms will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.
  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 these Standard Terms.  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 these Standard Terms.  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.
  3. Notices.  Any notice required or permitted under the terms of these Standard Terms or required by Law must be in writing and must be: (a) delivered in person; (b) sent by first class registered mail, or air mail, as appropriate; or (c) sent by overnight air courier; in each case properly posted and fully prepaid to the appropriate address set forth in these Standard Terms on the Website.  Notwithstanding the foregoing, any notices required to be given by Feed may be sent to the Client email address set forth on the Website. 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.
  4. Limitation on Claims.  Except for the right of indemnification, no action arising out of any breach or claimed breach of these Standard Terms or transactions contemplated by these Standard Terms may be brought or raised by either party more than one year after the cause of action has accrued.  For purposes of these Standard Terms, 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.
  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 these Standard Terms 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, epidemic, pandemic, or widespread viral outbreak, but the inability to meet financial obligations is expressly excluded.  
  6. Waiver.  Any waiver of the provisions of these Standard Terms or of a party’s rights or remedies under these Standard Terms must be in writing to be effective.  Failure, neglect, or delay by a party to enforce the provisions of these Standard Terms 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 these Standard Terms and will not in any way affect the validity of the whole or any part of these Standard Terms or prejudice such party’s right to take subsequent action.  No exercise or enforcement by either party of any right or remedy under these Standard Terms will preclude the enforcement by such party of any other right or remedy under these Standard Terms or that such party is entitled by Law to enforce.
  7. Severability.  If any term, condition, or provision in these Standard Terms 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 these Standard Terms.  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.
  8. Integration.  These Standard Terms contain the entire agreement and understanding of the parties with respect to the subject matter of these Standard Terms and supersedes all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to said subject matter.  These Standard Terms may not be amended except by a writing signed by authorized representatives of both parties.
  9. Publicity.  Any press releases, public announcements or similar publicity with respect to these Standard Terms or the business relationship between the parties created hereunder must be approved by both parties in writing in advance of issuance.  Notwithstanding the foregoing, Feed shall have the right to list Client on Feed’s website and marketing materials as a client of Feed and to use Client’s logo and a Site domain name in any such materials.  Client hereby grants to Feed a non-exclusive, royalty free, worldwide right and license to use Client’s trademarks to accomplish the foregoing; provided that: (a) Feed shall keep intact any proprietary notices of Client; (b) Feed shall comply with Client’s trademark use guidelines; (c) Feed acknowledges that all goodwill generated through the use of the Client trademarks will inure to the benefit of Client; and (d) Feed hereby assigns and agrees to assign to Client any and all goodwill generated through its use of the Client trademarks, without any payment or other consideration to it, and further agrees to take all actions necessary to effect such assignment.
  10. Governing Law.  These Standard Terms 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 Santa Clara County, California for resolution of any disputes arising out of these Standard Terms.
  11. Remedy.  The parties acknowledge that the other party would have no adequate remedy at law to enforce Section 7.  In the event of a breach by either party of such Section, the non-breaching party shall have the right to obtain injunctive or other similar relief, as well as any other relevant damages, without the requirement of posting bond or other similar measures.
  12. Third-Party Beneficiaries. Client acknowledges that the Licensors of Feed for the rights in musical works and sound recordings, including, without limitation, Warner Music Inc. and Warner Music International Services Limited, are intended third-party beneficiaries of these Standard Terms between Client and Feed.
  13. Counsel.  Client acknowledges that Client has had the opportunity to consult with legal counsel prior to accepting these Standard Terms even if Client has chosen not to do so.
  14. Interpretation.  Each party hereby waives the application of any rule of law that would otherwise be applicable in connection with the interpretation of these Standard Terms, including, but not limited to, any rule of law to the effect that any provision of these Standard Terms shall be interpreted or construed against the party who prepared these Standard Terms.
  15. Headings.  The captions and headings in these Standard Terms are intended only for convenience, and will in no event be construed to define, limit or describe the scope or intent of these Standard Terms, or of any provision of these Standard Terms, nor in any way affect the interpretation of these Standard Terms.

Version Control #: 2020-11-25

EXHIBIT A

TERRITORY

With respect to musical works licensed by

(1) BMG Rights Management (US) LLC (on behalf of the various BMG music publishing entities operating in or with responsibility for the United States and Canada), “Territory” means the United States and Canada

(2) Warner Chappell Music, Inc., “Territory” means the United States, its territories and possessions.

EXHIBIT B

CERTIFICATION OF QUALIFICATIONS

Client hereby certifies that each of the following is true and correct as of the date of completion of this Certificate of Qualifications:

  1. Gross Revenues during the preceding 12 months do not exceed 4,500,0000, where “Gross Revenues” means all amounts received or receivable by Client from the sale or provision of any products, goods or services, excluding taxes collected and amounts allocable to returns.

  1. Cumulative capital financing for Client’s business does not exceed seven and one-half million U.S. Dollars (USD$7,500,000).

  1. Client is not majority owned or majority controlled (directly or indirectly) by an entity that exceeds the limits set forth in items 1 and/or 2 immediately above.

  1. The following cumulative metrics for all Client Sites for the immediately preceding month do not exceed:

  1. one hundred thousand (100,000) monthly active users (“MAUs”) of the Client service to the extent the Client service is ad-supported or free-to-the-user;

  1. ten thousand (10,000) MAUs to the extent the Client service is subscription-based or otherwise paid for by users;

  1. to the extent the Client service makes available full-length sound recordings, one million (1,000,000) plays of such full-length sound recordings, with a play for such purposes defined as a playback of thirty (30) seconds or more;

  1. to the extent the Client service makes available only sound recordings of no more than thirty (30) seconds or more in duration, ten million (10,000,000) plays of such sound recordings, with a play for such purposes defined as a playback of any duration; and

  1. five hundred thousand (500,000) total “creation events” (defined as user generated content uploaded for consumption by other users on the Client service).

  1. Client is not an entity against which there is any potential claim or litigation involving Client arising out of the unauthorized (and not otherwise permitted by law) recording, manufacturing, distributing, communicating to the public, selling, reproducing (or other use) of any API Content or other property or other tangible or intangible rights owned or controlled by, or granted to, any Licensor or any other entity that owns or controls sound recordings or musical works.

  1. Client is not engaged, as its core business, in the recording or music publishing industries.

  1. Client is not engaged in the business of selling or making available any products designed to circumvent copy protection mechanisms or digital rights management (e.g., audio and/or video stream capture software) or any service that directly or indirectly facilitates the reproduction, distribution, display, monetization or performance of copyrighted materials without the express authorization of the applicable rights owners or as otherwise permitted by Law.

By clicking “I HEREBY CERTIFY THE QUALIFICATIONS,” I, owner/officer/partner/agent of Client hereby state that Client satisfied all of the qualifications set forth above as of the last day of the calendar month preceding the date of submission of this Certificate of Qualifications.

If you are unable to submit this certification due to non-compliance with any of the provisions hereof, then please contact support@adaptr.com