DIGITAL OUT OF HOME AUDIO Services Agreement
In this Agreement, "We","Ours", or "Us" means IEMERGE, Inc. (d/b/a Citadel FM) (“CITADEL”) located at 18 Shipyard Dr Suite 2A Hingham, MA 02482, and their affiliates. "You" or "Yours" refers to the applicant(s) who sign this Agreement and requests to receive digital audio service ("Services") from CITADEL FM.
1. Scope of Agreement. We agree to provide, and You agree to play in {totalNumber70} of your Venues, Digital Audio Radio and Podcast (s) (“FEED”) under the terms and conditions of this Agreement. We will not be obligated to continue providing service to You unless You comply with the terms and conditions contained in this Agreement. Provision of Radio and Podcast to You depends upon the availability of the required equipment and bandwidth, and We may substitute, change, or rearrange the methods to provide the Feed to You if We feel it is necessary for any reason.
2. Use. You may use the FEED for any lawful purpose. However, You may not interfere with or impair service or the privacy of any other person's communication over Our system. WE MAY IMMEDIATELY SUSPEND, TERMINATE, OR OTHERWISE INTERRUPT YOUR SERVICE IF WE HAVE REASON TO BELIEVE THAT YOU HAVE USED THE SERVICE IN VIOLATION OF THE DIGITAL MILLENNIUM COPYRIGHT ACT ("DMCA") OR OTHER LAWS, OR IN VIOLATION OF ANY BOARD POLICY ESTABLISHED BY THE CITADEL MANAGEMENT. The CITADEL MANAGEMENT may establish or alter its policies regarding acceptable use of the Services, and You agree that Your Service is subject to those policies as they may be amended from time to time. We will inform You if those policies change, and You will have the right to discontinue Service if You do not wish to comply with current policies.
3. Service Feed Date and Term. This Agreement shall take effect when it is signed and shall continue in effect for as long as you digitally play the Feed from Us. CITADEL may discontinue the Feed to your Venue at any time or for any reason. CITADEL reserves the right to discontinue its broadcast service Feed for Digital Radio or Podcast at any time and at its sole discretion.
4. Royalties and Fees. CITADEL shall be responsible for payment of all Royalties of music or content played over the Feed. You shall not be obligated to pay any fees, set up fees, or other payments unless agreed to by both parties in writing.
4a. Revenue Share. You agree to run CITADEL's Feed for at least three (3) months after signing this agreement in order for CITADEL to gather enough statistics to determine the amount of revenue it will share with the venue. A separate Revenue Share agreement will be provided to You if CITADEL determines that there is adequate revenue generated by your Venue and it's location.
4b. Guaranteed Payment. CITADEL agrees to pay You a Service Fee ("Service Fee") of ${totalMonthly} per month for 12 months starting at the effective date of this agreement and commencement of Citadel FM music stream. CITADEL shall also pay you a signing bonus ("Bonus") {oneTime}per Venue for a total of ${totalOnetime108} upon execution of this agreement and commencement of Citadel FM music stream in addition to the first month service fee. The Bonus will be made within 10 business days upon execution of this agreement and commencement of Citadel FM music stream . CITADEL retains the right to cancel this obligation under section 4b. at its sole discretion after 6 months of service if CITADEL determines that there is not enough advertising demand to sustain the monthly payment. If CITADEL does cancel the terms of section 4b, CITADEL will continue to offer it's feed to You on an ongoing basis on a revenue share basis based on the terms of section 4a of this agreement.
4c. Venue Advertising and Content. You at your Venue shall be entitled to run it's own ads and content over CITADEL without additional fees or charges. The amount of time available for your Ads shall be determined by CITADEL. You are also allowed to sell and run your own advertising for 3rd party advertisers over your Feed at no additional charge. You shall be entitled to receive all revenue generated by these ads. You are responsible for billing/collections, production costs in order to produce and run the ad over CITADEL's Feed.
4d. Payment Schedule. CITADEL agrees to pay the Service Fee outlined in section 4 and you agree to accept payments at the end of each quarter of the year as compensation for playing CITADEL's Feed. Payments will be pro-rated based on the Effective Date of each contract. Payments will be made within 14 business days following the end of each quarter.
5. Customer Responsibilities. You will be provided a Feed via an Internet address where you will play the Feed. You are responsible for your own equipment (most devices that are capable of connecting to the Internet and have speakers or can be connected to speakers). You are responsible to provide adequate internet bandwidth to run the service.
6. Equipment. You will continue to own any equipment that you have provided during and after you use the service. Upon disconnection of the Services, You agree to send back to CITADEL any equipment necessary that may have been provided to you to the address provided at the time of request by CITADEL or its assignee.
7. Limitation of Liability. Your sole and exclusive remedy under this Agreement for any breach by Us shall be to terminate this Agreement. IN NO EVENT SHALL IEMERGE, INC, OR THEIR AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, RELIANCE, PUNITIVE OR ENHANCED DAMAGES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS, LOST SAVINGS, OR BUSINESS HARM) ARISING OUT OF OR RELATING TO THE SERVICES OR CITADEL'S PERFORMANCE OR NONPERFORMANCE UNDER THIS AGREEMENT.
8. Termination. Both parties have the right to terminate this Agreement for any reason at any time, but all sums for Services You are owed at the time You terminate shall become due and payable in the normal course of business. All commissions or revenue share on your own Feed and any other commission due to you will be terminated upon cancellation of the service. Except for situations covered by Section 2 of this Agreement, We may terminate this Agreement at any time for breach of this Agreement or misuse of the Feed.
9. Indemnity. If any claims are made against Us that were caused by Your use of the Services, You will be responsible for all costs arising from that claim, and You will reimburse Us for Our defense of the claim and any costs We pay as a result.
10. Assignment. You may not assign this agreement to any other person. We retain the right to assign this Agreement to an affiliate or another party.
11. Warranties. WE MAKE NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICE.
12. Governing Law. This agreement shall be governed by the laws of the Commonwealth of Massachusetts. Both parties agree to waive their rights to a Jury Trial. Any dispute shall be held in Suffolk County in the Commonwealth of Massachusetts.
13. Confidentiality. The Parties to this Agreement may not disclose to any third party, the use of the works, know-how, trade secrets, vendors, suppliers, terms of this agreement, pricing, revenues engaged by You with CITADEL without the other party's written consent. Neither Party may sell, nor disclose with any third party any proprietary or confidential information acquired by them in the course of their engagement with the other, without the written consent of the other party.
You agree to return to CITADEL all confidential documents, records, or any information owned by CITADEL upon the termination of the Agreement. In case of failure to return the confidential documents, records, or information, You shall notify CITADEL and shall agree how such information shall be disposed or returned to CITADEL.