1.1 Services. Liquid Compass will provide Customer with the services (“Services”) specified in the Order Form, defined below. Subject to the terms of this agreement (“Agreement”), Liquid Compass grants to Customer a limited, personal, non-exclusive, non-transferable, non-sublicensable right to use the Services identified in any and all Order Forms executed under this Agreement during the Term of Service (as defined in section 9.2). This Agreement consists of all of the terms and conditions set forth in this Agreement and the related Order Forms (each, an “Order Form”), which define the Services to be provided hereunder and are executed by the Parties from time to time, and provides the terms and conditions applicable to all Order Forms. Any modification of this Agreement within an Order Form will apply only to that Order Form in which the modification is set forth. All capitalized terms in this Agreement shall have the same meanings ascribed to them in the Order Forms unless otherwise specifically defined herein. Unless otherwise indicated by Customer, Liquid Compass will automatically display a listing or respective station/network logo on its website which will link back to Customer’s website. This listing or station/network logo will reside within Liquid Compass’ station list on www.liquidcompass.net. Customer electing to use Liquid Compass’s stream hosting service are required to use a Liquid Compass media player which will display (in an unobtrusive manner) “Powered by LiquidCompass.net”.
1.2 Cooperation. Customer acknowledges that the Services will be performed in cooperation with Customer personnel. Customer will furnish to Liquid Compass (a) descriptions, specifications, materials, content and related metadata (“Content”), data and other information (collectively, “Customer Information”), (b) cooperation, technical assistance, resources and support and (c) access to Customer’s equipment, systems and networks, all as reasonably necessary or appropriate to perform the Services. Customer hereby grants to Liquid Compass a non-exclusive license to access, use, reproduce, distribute, transmit and display images, graphics and video for Customer Information in connection with the Services. Nothing in this Agreement is intended to grant to Liquid Compass any rights in or to the Customer Information (other than those expressly granted herein).
2.1 Software. If Liquid Compass provides Customer with any software (which shall be provided, if at all, in object code form), including, if applicable and without limitation, any patch, update or new version thereof (collectively, “Software”), to enable Customer and/or Customer’s website users (“Users”) to take advantage of the Services, then, subject to all terms and conditions of this Agreement, Liquid Compass grants to Customer a nonexclusive, nontransferable (except as expressly provided below) right and license to, as applicable, use or distribute and sublicense such Software to Users without modification solely for personal and non-commercial use in connection with the Services. Whenever possible, Liquid Compass will provide Customer with advance notice of any modifications, upgrades, new versions or other changes in the Software or Services, including cancellation. Customer acknowledges that some Services and Software are provided to Liquid Compass by third parties and Liquid Compass shall have no liability for any modifications, upgrades, new versions or other changes to these Services or Software, including cancellation of Services or Software.
2.2 Restrictions. Except as specifically permitted in this Agreement, Customer shall not directly or indirectly (a) use any Confidential Information (as defined in Section 4.1) to create any software that is similar to the Software, (b) disassemble, decompile, reverse engineer or otherwise try to discover any source code or underlying structures, ideas or algorithms of the Software (except and only to the extent these restrictions are expressly prohibited by applicable statutory law), (c) encumber, lease, rent, loan, sublicense, transfer or distribute any Software (except as expressly permitted under this Agreement), (d) use the Software for the benefit of any third party (e.g., time-share or service bureau arrangement), (e) copy, adapt, merge, create derivative works of, translate, localize, port or otherwise modify any Software, (f) alter, obscure or remove any trademark, patent notice or other proprietary or legal notice displayed by or contained in any Software, (g) use the Software, or allow the transfer, transmission, export or re-export of all or any part of the Software, in violation of any export control laws or regulations of the United States or any other relevant jurisdiction, or (h) permit any third party to engage in any of the foregoing proscribed acts. Customer shall be responsible for any and all breaches of this Agreement by Users.
2.3 Username and Password. Some of the Services require Liquid Compass or its third party licensors to issue Customer a username and password to access such Services. Customer agrees that Customer is solely responsible for keeping that password confidential and shall not disclose it to third parties. Any misuse of the Services requiring access to Liquid Compass’ or its third party licensors’ servers or the knowledge database resulting from the use of the user name and password shall be considered as attributable to the Customer (unless due to the negligence or fraud of Liquid Compass or its third party licensors ) and shall be considered as a material breach of this Agreement. Customer will not make any Services available for timesharing with any third party, application service provider or service bureau use. Customer will comply with all applicable laws and regulations in use of and access to the data of all Services requiring access to a server other than Customer’s server.
3.1 Costs and Expenses. Except as modified by a Liquid Compass Barter Affiliate Agreement, Customer will pay Liquid Compass in accordance with the Order Form. Customer acknowledges and agrees that, with respect to Services for which a monthly rate is charged, Liquid Compass reserves the right to change such monthly rates upon written notice to Customer. Except as specifically provided in this Agreement, each Party is responsible for all costs and expenses incurred in connection with its performance hereunder.
3.2 Payment Terms. All amounts due will be payable in United States dollars, and except as otherwise set forth herein or in an Order Form, Credit cards will be billed on the 1st of each month for monthly package minimum, and no later than the 10th of each month for previous month’s bandwidth overages and applicable AdsWizz CPM charges.
3.3 Late Fees; Collection Costs; Reconnect Fees. Amounts not received when due shall draw interest at the rate of eighteen percent (18%) per annum or the maximum rate permitted by applicable law, whichever is less. In addition, Customer shall be liable for all costs and expenses incurred by Liquid Compass to collect past due amounts, including, without limitation, reasonable attorneys’ fees and court costs, and the hourly charge of any Liquid Compass employees engaged in collection activities. If the Customer’s credit card is declined, Customer agrees to reconcile all outstanding charges within 10 days. If Customer is more than 10 days past due the Customer will be charged an interest fee until the account is paid in full, as well as and an interruption in the service provided by Liquid Compass on the 11th day that an account is past due. Should the Customer’s service be suspended for late or non-payment, Customer’s account will automatically be charged a $100 reconnect fee per station, which will be added to the Customer’s next monthly charge.
4.1 Each Party agrees that all business, technical, financial and other non-public information it obtains from the other Party is and shall be treated as the confidential information of the disclosing Party and/or its licensors (“Confidential Information”). For the sake of clarity, all Software is Confidential Information. Confidential Information shall not include information that: (a) is previously rightfully known to the receiving Party without restriction, (b) is or hereafter becomes known to the general public, through no act or omission on the part of the receiving Party, (c) is rightfully disclosed to the receiving Party without restriction by a third party, or (d) is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information.
4.2 Except as expressly allowed herein, the receiving Party shall not use or disclose the Confidential Information of the disclosing Party except as expressly permitted herein, and shall hold in confidence the Confidential Information using the same degree of care as it holds its own confidential information, but no less than a reasonable degree of care.
4.3 Upon the expiration or termination of this Agreement, all of the Confidential Information (including, without limitation, any copies or extracts thereof) shall be returned to the disclosing Party, or, at the option of the disclosing Party, destroyed, and the receiving Party shall make no further use of such information.
4.4 If the receiving Party is required by law, regulation or order of any government, government agency or court, to disclose the Confidential Information of the disclosing Party, the receiving Party shall give written notice thereof to the disclosing Party prior to disclosure of the Confidential Information so as to permit the disclosing Party to intervene and to request protective orders or other confidential treatment therefor. In addition, either Party may provide a copy of this Agreement and the related Order Forms or otherwise disclose their terms in connection with any financing transaction or due diligence inquiry.
5. INTELLECTUAL PROPERTY
5.1 Ownership by Liquid Compass. Liquid Compass and its licensors will own all right, title and interest in and to any and all Inventions (as defined below) and all Intellectual Property Rights (as defined below) appurtenant thereto, that Liquid Compass or its affiliates conceive, reduce to practice, make, develop or acquire in connection with their business generally (before or after the effective date of this Agreement), including, without limitation, the Software, product features, menus and functionality that are not specific to Customer (collectively, “Liquid Compass Technology”). For purposes of this Agreement, “Invention” means any idea, concept, discovery, invention, development, technology, work of authorship, trade secret, software, firmware, tool, process, technique, know-how, data, plan, device, apparatus, specification, design, layout, algorithm, program, code, documentation or other material or information, tangible or intangible, whether or not it may be patented, copyrighted or otherwise protected (including, without limitation, all versions, modifications, enhancements and derivative works thereof); and “Intellectual Property Rights” means any and all patent rights, copyrights, trademarks, service marks, trade names, domain names, trade secrets, sui generis database rights and all other intellectual and industrial property rights of any sort throughout the world (including, without limitation, any applications or registrations therefore).
5.2 Ownership by Customer. Customer and its licensors shall maintain their rights in or to the Customer Information and the Intellectual Property Rights appurtenant thereto. In addition, subject to Liquid Compass’s rights in and to the Liquid Compass Technology and also subject to any rights of its third party licensors, work product made, developed or acquired specifically for the Customer in providing Services hereunder (such as the graphical user interface, Customer trademarks and encoded Content) (collectively, “Deliverables”) are works made for hire to the extent allowed by law, and Liquid Compass hereby makes and agrees to make all assignments necessary to accomplish the foregoing ownership. To the extent that the Deliverables incorporate or cannot be reasonably used without using or violating intellectual property rights owned or licensed by Liquid Compass with respect to the Liquid Compass Technology, Liquid Compass hereby grants to Customer a nonexclusive right and license to use the Liquid Compass Technology solely in support of Customer’s use of the Deliverables during the term of this Agreement.
5.3 Trademarks. During the term of this Agreement and subject to all terms and conditions herein, Customer grants to Liquid Compass a nonexclusive right and license to use Customer trademarks, service marks, trade names and logos, solely in connection with provision of the Services.
5.4 General Learning. Customer agrees that Liquid Compass is free to reuse all generalized knowledge, experience, know-how and technologies (including ideas, concepts, processes and techniques) related to the Deliverables or acquired during performance of the Services.
5.5 No Implied Licenses. Nothing in this Agreement is intended to grant any rights to either Party with respect to any Intellectual Property Right of the other Party, nor shall this Agreement grant either Party any rights in or to the Confidential Information of the other Party, except as expressly set forth herein.
6. WARRANTIES AND DISCLAIMERS
6.1 Warranties. Each Party represents and warrants to the other Party that (a) it will perform its obligations under this Agreement in a professional and workmanlike manner, (b) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of formation and has all requisite power and authority to enter into this Agreement, and (c) it has all necessary power and authority to grant the rights and licenses granted hereunder. In addition, Customer represents and warrants to Liquid Compass that (i) Customer Information is not infringing, misappropriated, defamatory, obscene or otherwise violates the privacy or other rights of any third party, and (ii) Content complies with all applicable federal, state and local laws and regulations.
6.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, LIQUID COMPASS MAKES NO WARRANTIES TO CUSTOMER WITH RESPECT TO THE SERVICES THAT ARE THE SUBJECT OF THIS AGREEMENT, AND LIQUID COMPASS HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING OR PERFORMANCE OR USAGE OF TRADE. LIQUID COMPASS DOES NOT WARRANT THAT THE LIQUID COMPASS TECHNOLOGY, SERVICES OR DELIVERABLES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY ERRORS CAN OR WILL BE FIXED. SOME SERVICES ARE PROVIDED TO CUSTOMER THROUGH LIQUID COMPASS BY THIRD PARTY LICENSORS. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, LIQUID COMPASS EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, LIABILITIES AND CAUSES OF ACTIONS ARISING FROM OR RELATED TO THE SOFTWARE AND SERVICES PROVIDED BY THIRD PARTY LICENSORS.
7.1 By Liquid Compass. Liquid Compass agrees to defend, indemnify and hold harmless Customer and its officers, directors, employees and agents from and against any and all third party claims, liabilities, penalties, damages, costs and expenses (including reasonable attorneys’ fees), as well as amounts finally awarded in a settlement or by a court, arising from any claim or allegation by a third party that the Services (except Services provided by third party licensors) or Liquid Compass Technology infringes or misappropriates a valid United States patent, copyright or trade secret right of such third party. If any of the Services or Liquid Compass Technology becomes or, in Liquid Compass’s opinion, is likely to become the subject of an injunction, Liquid Compass may, at its option, (a) procure for Customer the right to continue using such Service or Liquid Compass Technology, (b) replace or modify such Service or Liquid Compass Technology so that it becomes non-infringing without substantially compromising its functionality, or, if (a) and (b) are not reasonably available to Liquid Compass, then (c) terminate this Agreement in respect of the allegedly infringing Service or Liquid Compass Technology. The foregoing states the entire liability of Liquid Compass with respect to infringement of patents, copyrights, trade secrets or other intellectual property rights. The foregoing obligations shall not apply to: (i) Services or Liquid Compass Technology modified by any party other than Liquid Compass, if the alleged infringement relates to such modification, (ii) Services or Deliverables combined or bundled with any non-Liquid Compass products, processes or materials where the alleged infringement relates to such combination, (iii) Services or Liquid Compass Technology created to the specifications of Customer, (iv) infringement or misappropriation of any proprietary right in which Customer has an interest, or (v) any claims arising from the AdServer or AudioMetrix Software provided by AdsWizz SA-NV for which Liquid Compass shall have no obligations to indemnify whatsoever.
7.2 By Customer. Customer agrees to defend (with counsel chosen by Liquid Compass), indemnify and hold harmless Liquid Compass and its members, managers, officers, directors, employees and agents from and against any and all third party claims, liabilities, penalties, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees), as well as amounts finally awarded in a settlement or by a court, arising from (a) any claim or allegation by a third party relating to the Customer Information, including, without limitation, that the Customer Information is infringing, misappropriated, defamatory, obscene or otherwise violates the publicity, privacy or any other right of a third party, or (b) a breach of this Agreement by Customer.
8. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, LIQUID COMPASS SHALL HAVE NO LIABILITY TO CUSTOMER, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) MATTER BEYOND ITS REASONABLE CONTROL (INCLUDING, WITHOUT LIMITATION, ANY ERROR OR DAMAGE ATTRIBUTABLE TO ANY NETWORK OR SYSTEM, AND ANY FAILURE BY ITS LICENSORS TO FULFILL THEIR CONTRACTUAL OBLIGATIONS), (B) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (C) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL, OR (D) AGGREGATE DAMAGES IN EXCESS OF THE AMOUNT PAID OR PAYABLE TO LIQUID COMPASS BY CUSTOMER DURING THE PREVIOUS TWELVE (12) MONTHS OF THIS AGREEMENT, EVEN IF LIQUID COMPASS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
9. TERM AND TERMINATION
9.1 Term. Unless earlier terminated as provided below, this Agreement shall commence on the effective date of the first Order Form and shall continue in effect until the expiration or termination of all Order Forms. Some Services provided through Liquid Compass’ Licensors maybe subject to early termination. In such instances, Liquid Compass shall have no liability for the early termination of such Services and Customer shall only be responsible for payment for these Services during the time period in which such Services are received.
9.2 Term of Service. The Term of Service is defined in all associated Order Forms incorporated herein by reference. The term will automatically renew for successive one (1) year period (“Renewal Terms”) unless, at least ninety (90) days prior to the commencement of a Renewal Term, written notice of non-renewal is provided by one Party to the other; provided, however, that in the event of a fixed-fee contract (as opposed to a monthly fee contract), Customer’s termination of this Agreement prior to the termination of the Term of Service will require payment of a termination fee equal to the balance of the fixed fee due under the contract calculated as of the date this Agreement terminates through the remainder of the Term of Service had this Agreement not been terminated.
9.3 Termination for Breach or Bankruptcy. Either Party may terminate this Agreement (a) if the other Party materially breaches a provision of this Agreement and fails to cure such breach within thirty (30) days after receiving written notice of such breach from the non-breaching Party, or (b) immediately upon written notice, if the other Party makes an assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other Party’s property, or the other Party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other Party and is not dismissed within sixty (60) days, or the other Party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course.
9.4 Month-To-Month Extension. If no Liquid Compass Affliate Barter Agreement is in place, should the Customer not auto-renew this Agreement and elect to receive service on a month-to-month basis, Liquid Compass will continue to provide service to the Customer on a month-to-month basis at a new rate of $1.00 per Gigabyte with a minimum equal, but not less than, the bandwidth minimum defined within the Order Form. This new fee only pertains to month-to-month extensions when the Customer is outside the term of the Agreement with Liquid Compass. If a Liquid Compass Affiliate Barter Agreement has been executed, Customer shall have no right to receive service on a month-to-month basis under this section.
9.5 Early Termination. Upon delivering the Cancellation of Service Request Form (see EXHIBIT “C”) via certified mail to Liquid Compass at least ninety (90) days prior to the requested termination date, but not within the initial one hundred and eighty (180) days of this Agreement, Customer shall request an “Early Termination” of service prior to the expiration of service date specified within the Order Form.
9.6 Early Termination Provisions. Should Customer request an Early Termination prior to the expiration of services date specified within the Order Form, pursuant to section 9.5 of this Agreement, Customer shall be required to pay Liquid Compass a lump sum of 75% of the “Total MRC”“ as detailed within the Order Form for the remaining unused term of this Agreement. Should Cancellation of Service Request Form be delivered after the initial one hundred and eighty (180) days of service, Total MRC will be calculated by using the average “Total Balance Due” specified on invoices provided to the Customer by Liquid Compass within the proceeding one hundred eighty (180) day period prior to receiving the Cancellation of Service Request Form. Adjusted amount cannot be less than the Total MRC specified within the Order Form. Payment of this lump sum amount will be due in full within thirty (30) days after the effective date of the notice as stated by the Customer on the Cancellation of Service Request Form. Should lump sum payment not be received within this thirty (30) day period, the Customer forfeits its request for Early Termination, and voids any Cancellation of Service Requests received by Liquid Compass.
9.7 Effect of Termination. Upon any termination or expiration of this Agreement, all rights, obligations and licenses hereunder shall cease, except that: (a) all obligations that accrued prior to the effective date of termination or expiration and any remedies for breach of this Agreement shall survive any termination or expiration; (b) Customer shall promptly return or destroy all Software and other tangible Confidential Information, and permanently erase all Confidential Information from any computer and storage media; (c) Customer’s liability to pay for Services performed (and non-cancelable service terms and/or expenses incurred) prior to the termination or expiration date shall not be extinguished, and shall become due and payable on the termination or expiration date; (d) upon request, Liquid Compass shall return to Customer all Content (including any encoded Content created as part of the Services) provided that Customer has paid in full all amounts owed to Liquid Compass (Customer acknowledges and agrees that Liquid Compass will delete all Customer Content sixty (60) days after termination); and (e) the provisions of Sections 2, 3, 4, 5, 6, 7, 8, 10 and this Section 9.7 shall survive any termination or expiration of this Agreement.
10. ADSERVER AND AUDIOMETRIX.
If Customer selects the Adserver and AudioMetrix Services, Customer acknowledges that the AdServer and AudioMetrix Software is provided to Liquid Compass by AdsWizz SA-NV. Customer is therefore given a limited, non-transferrable, non-sublicensable right to use the AdServer and AudioMetrix Software. Liquid Compass is not responsible for any costs incurred for these Services to perform and function to specifications that are deemed necessary by the Customer or any of its stations. Liquid Compass will furnish Customer with a login and password, as needed, to upload such information as is required to utilize these Services. Customer warrants that: (a) it shall only use the AdServer and AudioMetrix Services and the information contained therein for its own benefit in connection with the insertion of ads in connection with the Stations set forth on the Order form, (b) its right to use these Services shall terminate on the earlier of: the expiration or earlier termination of agreement between Liquid Compass and AdsWizz SA-NV or the termination of this Agreement, (c) it will not in anyway change or alter the AdServer and AudioMetrix Software, (d) it will be solely responsible for maintaining the confidentiality, use and activities of its login and password and will immediately notify Liquid Compass should it become aware of illegal use of these Services; (e) it shall not remove any proprietary rights legends from these Services; and (f) it is fully aware that these Services are subject to a Service Level Agreement between Liquid Compass and AdsWizz SA-NV which may result in different levels of service than are set forth in this Agreement. The Customer shall only access the AudioMetrix Service for the following purposes: (i) Accessing real time measurement; (ii) Accessing historical measurement; (iii) Export of data for external use; (iv) Export of charts in image file format (jpg files).Other than as expressly specified in this agreement, there shall be no restriction on the use of any Customer Data or Reports by the Customer. Customer expressly acknowledges that the data derived from the AudioMetrix Service may not match data obtained from other similar services and Customer further acknowledges that neither Liquid Compass nor AdsWizz SA-NV shall have any liability whatsoever for any discrepancies or differences in data.
11. GENERAL PROVISIONS
This Agreement (including all Order Forms) constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the Parties about the subject matter hereof. No waiver, consent or, except as expressly provided herein, modification of this Agreement (including all Order Forms) shall bind either Party unless in writing and signed by the Party against whom enforcement is sought. The failure of either Party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado, without regard to its conflicts of law provisions. The sole jurisdiction and venue for actions related to this Agreement will be the state or federal courts located in Denver County, Colorado, and both Parties consent to the jurisdiction of such courts with respect to any such action. In any action or proceeding to enforce or interpret this Agreement, the prevailing Party will be entitled to recover from the other Party its costs and expenses (including, without limitation, reasonable attorneys’ fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained. This Agreement and the rights and obligations hereunder are personal to each Party, and may not be subcontracted, delegated, assigned or otherwise transferred, in whole or in part, without the other Party’s prior written consent; provided that either Party may assign this Agreement to a successor to all or substantially all of the assets or business of such Party to which this Agreement relates, whether by merger, sale of stock, sale of assets or other similar transaction. Any attempt to do otherwise shall be void and of no effect. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the Parties. The Parties hereto shall each be independent contractors in the performance of their obligations under this Agreement, and nothing contained herein shall be deemed to constitute either Party as the agent or representative of the other Party, or both Parties as joint venturers or partners for any purpose.