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ShoutcastCity Terms of Service Agreement
Just a little bit of legal jargon to ensure the best working relationship between us, and the best quality service for you and your station.
Declaration of Terms.
This SHOUTcast and Web Hosting Agreement (henceforth "the Agreement") is between Benson Media, LLC dba ShoutcastCity (henceforth "ShoutcastCity") and the person (individual or legal person) who completes the ShoutcastCity service order and set up form (henceforth "the Order") incorporating the Agreement by reference (henceforth "the Customer"). The Agreement governs the Customer's use of ShoutcastCity's SHOUTcast hosting service(s), and the service(s) dispensed to the Customer by ShoutcastCity.
Subject to the terms of the Agreement, and contingent on the Customer's satisfaction of ShoutcastCity's credit approval requirements, ShoutcastCity agrees to provide the web hosting services described in the Order for the fees stated in the Order.
The initial service term of the Agreement shall begin on the date that ShoutcastCity generates an e-mail message to the Customer announcing the activation of the Customer's account (henceforth "the Service Commencement Date") and shall continue for the number of months stated in the Order (henceforth "the Initial Term"). Upon expiration of the Initial Term, the Agreement shall automatically renew for up to three (3) successive renewal terms of the same length as the Initial Term (each a "Renewal Term") unless ShoutcastCity or the Customer provides the other party with written notice of non-renewal at least thirty (30) days prior to the expiration of the Initial Term or then-current Renewal Term, as applicable. The Initial Term and any Renewal Term may be referred to collectively in this Agreement as the "Term."
Fees are payable in advance on the first day of each billing cycle. The Customer's billing cycle shall be monthly or annually as indicated on the Order, beginning on the Service Commencement Date. ShoutcastCity may require payment for the first billing cycle before beginning service. If the Order provides for credit/debit card billing, the Customer authorizes ShoutcastCity to bill subsequent fees to the credit/debit card on or after the first day of each successive billing cycle during the Term of this Agreement; otherwise ShoutcastCity will invoice the Customer via electronic mail to the Primary Customer Contact listed on the Order. Invoiced fees may be issued on or before the first day of each billing cycle, and the fees shall be due on the seventh (7th) day following invoice date, but in no event earlier than the first (1st) day of each billing cycle.
ShoutcastCity may increase its fees for services effective the first day of a Renewal Term by giving notice to the Customer of the new fees at least forty-five (45) days prior to the beginning of the Renewal Term, and if the Customer does not give a notice of non-renewal as provided in the earlier section of the Agreement, the Customer shall be deemed to have accepted the new fees for that Renewal Term and any subsequent Renewal Terms (unless the fees are increased in the same manner for a subsequent Renewal Term).
At ShoutcastCity's request, the Customer shall remit to ShoutcastCity any sales, VAT, or similar taxes imposed on the provision of services (but not in the nature of an income tax on ShoutcastCity), regardless of whether ShoutcastCity fails to collect the tax at the time the related services are provided.
The Customer acknowledges that the amount of the fees for the service is based on the Customer's agreement to pay the fee for the entire Initial Term, or Renewal Term, as applicable. In the event ShoutcastCity terminates the Agreement for the Customer's breach of the Agreement in accordance with the Termination section, or the Customer terminates the service other than in accordance with the Termination section for ShoutcastCity's breach of the Agreement, the unpaid fees for each billing cycle remaining in the Initial Term or then-current Renewal Term, as applicable, are due on the business day following termination of the Agreement.
Legal Compliance and Acceptable Use Policy.
The Customer agrees to use the service in compliance with applicable laws and ShoutcastCity's Acceptable Use Policy posted at http://shoutcastcity.com/aup.php (henceforth "the AUP"), which is hereby incorporated by reference in this Agreement. Customer agrees that ShoutcastCity may, in its reasonable commercial judgment consistent with industry standards, amend the AUP from time to time to further detail or describe reasonable restrictions and conditions on the Customer's use of the Services. Amendments to the AUP are effective immediately at ShoutcastCity's notice to the Customer that an amendment has been made, or the first day of any Renewal Term that begins subsequent to the amendment. The Customer agrees to cooperate with ShoutcastCity's reasonable investigation of any suspected violation of the AUP. In the event of a dispute between ShoutcastCity and the Customer regarding the interpretation of the AUP, ShoutcastCity's commercial reasonable interpretation of the AUP shall govern.
The Customer represents and warrants to ShoutcastCity that the information he, she, or it has provided and will provide to ShoutcastCity for purposes of establishing and maintaining the service is accurate. If the Customer is an individual, the Customer represents and warrants to ShoutcastCity that he or she is at least 18 years of age. ShoutcastCity may rely on the instructions of the person listed as the Primary Customer Contact on the Order with regard to the Customer's account until the Customer has provided a written notice changing the Primary Customer Contact. The Customer may not hold multiple accounts without first submitting a written request seeking approval.
The Customer agrees to indemnify and hold harmless Benson Media, LLC; ShoutcastCity; the aforementioned companies' affiliates; and each of their respective officers, directors, agents, and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest, expenses and disbursements of any kind and nature whatsoever (including reasonable attorneys fees) brought by a third party under any theory of legal liability arising out of or related to the actual or alleged use of the Customer's services in violation of applicable law or the AUP by the Customer or any other person using the Customer's login information or services, regardless of whether such person has been authorized to use the services by the Customer.
Disclaimer of Warranties.
ShoutcastCity does not warrant or represent that the services will be uninterrupted, error-free, or completely secure. To the extent permitted by applicable law, ShoutcastCity disclaims any and all warranties including the implied warranties of merchantability, fitness for a particular purpose, and non-infringement. To the extent permitted by applicable law, all services are provided on an "as is" basis.
Limitation of Damages.
Neither party shall be liable to the other for any lost profits, or any indirect, special, incidental, consequential, or punitive loss or damage of any kind, or for damages that could have been avoided by the use of reasonable diligence, arising in connection with the agreement, even if the party has been advised or should be aware of the possibility of such damages.
Notwithstanding anything else in the agreement to the contrary, the maximum aggregate liability of ShoutcastCity and any of its employees, agents, or affiliates, under any theory of law (including breach of contract, tort, strict liability, and infringement) shall be a payment of money not to exceed the amount payable by the Customer for three (3) months of service.
Suspension of Service.
The Customer agrees that ShoutcastCity reserves the right to suspend services to the Customer without notice and without liability if: (i) ShoutcastCity reasonably believes that the services are being used in violation of the AUP; (ii) The Customer fails to cooperate with any reasonable investigation of any suspected violation of the AUP; (iii) ShoutcastCity reasonably believes that the suspension of service is necessary to protect its network, its equipment, or its other customers, or (iv) as requested by a law enforcement or regulatory agency. The Customer shall pay ShoutcastCity reasonable reinstatement fees if service is re-instituted following a suspension of service under this section.
The Agreement may be terminated by the Customer prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability if ShoutcastCity fails, in a material way, to provide service in accordance with the terms of the Agreement and does not cure the failure within ten (10) days of the Customer's written notice describing the failure in reasonable detail. The Agreement may be terminated by ShoutcastCity prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability as follows: (i) upon ten (10) days notice if the Customer is overdue on the payment of any amount due under the Agreement; (ii) the Customer materially violates any other provision of the Agreement, including the AUP and/or applicable law, and fails to cure the violation within fourteen (14) days written notice from ShoutcastCity describing the violation in reasonable detail; (iii) upon one (1) days notice if the Customer's service is used in violation of a material term of the AUP more than once; or (iv) upon one (1) days notice if the Customer violates the Customer Information section of this Agreement. Either party may terminate this agreement upon ten (10) days advance notice if the other party admits insolvency, makes an assignment for the benefit of its creditors, files for bankruptcy or similar protection, is unable to pay debts as they become due, has a trustee or receiver appointed over all or a substantial portion of its assets, or enters into an agreement for the extension or readjustment of all or substantially all of its obligations.
The Customers may cancel their SHOUTcast or web hosting services at any time by logging into our Customer Billing Area and submitting a cancellation ticket for their service. ShoutcastCity reserves the right to cancel services and/or accounts for any reason deemed as just in accordance with, but not limited to, this Terms of Service Agreement and/or the Acceptable Use Policy (the AUP).
Money Back Guarantee.
ShoutcastCity offers a risk-free, fourteen (14) day money back guarantee on all SHOUTcast hosting and reseller plans and web hosting plans. Under no circumstances are there to be refunds for setup fees, administrative fees, management fees, custom packages, license fees, domain registration fees, virtual private servers, dedicated servers, overage fees, or upgrade fees.
All refund requests after the initial fourteen (14) days of service will not be refunded. ShoutcastCity reserves the right to null and void the money back guarantee for any violation of this Terms of Service Agreement, the Acceptable Use Policy (AUP), or any reason deemed as just by ShoutcastCity. ShoutcastCity reserves the right to null and void the money back guarantee at any time without reason. Refunds are not possible on licensing fees such as Centova Cast, cPanel, or WHMCS, etc. Refunds are also not possible on dedicated servers, virtual private servers, custom solutions, domain names, SSL certificates, overage fees, upgrade fees, management fees, etc. ShoutcastCity account store credits are non-refundable and non-transferable. Custom priced solutions are not eligible for refunds under any circumstances.
We cannot provide any individual a refund unless payment was received directly from the said individual. Refunds are carried out in the same, direct venue as the payment that was received from the Customer (e.g. payments via PayPal can only be refunded through PayPal, payments via Credit/Debit Card can only be refunded through Credit/Debit Card). Refunds by cash or check may incur a processing fee of no lesser than $1.00 USD and no greater than $5.00 USD. Refunds by cash or check can only be made if payment was received initially by cash or check. Money orders are only refunded by check. The Customer is liable for all PayPal fees in a refund. This Money Back Guarantee is null and void if the services or transactions in question are disputed via PayPal Resolution Center, credit/debit card chargeback, canceled checks or "stop payments."
Only new, first-time, unique signups are eligible to utilize the fourteen (14) day money back guarantee. Repeat customers, or previously canceled, suspended, or terminated customers, are not eligible for the fourteen (14) day money back guarantee. Existing customers who sign up for additional services are also not eligible for the money back guarantee.
Requests for Customer Information.
The Customer agrees that ShoutcastCity may, without notice to the Customer, (i) report to the appropriate authorities any conduct by the Customer or any of the Customer's customers or end users that ShoutcastCity believes violates applicable law, and (ii) provide any information that it has about the Customer or any of the Customer's customers or end users in response to a formal or informal request from a law enforcement or regulatory agency or in response to a formal request in a civil action that on its face meets the requirements for such a request.
Data Backup Liability.
The Customer agrees to maintain a current copy of any and all content hosted by ShoutcastCity, notwithstanding any agreement by ShoutcastCity to provide backup services.
Network and Equipment Maintenance.
Upgrades and other changes in ShoutcastCity's network, including, but not limited to, changes in ShoutcastCity and/or DJAB Networks software, hardware, service providers, etc. may affect the display or operation of the Customer's hosted content and/or applications. ShoutcastCity reserves the right to change its network and/or equipment in its commercially reasonable discretion, and ShoutcastCity shall not be liable for any resulting harm to the Customer.
Notices to ShoutcastCity under the Agreement shall be given via support ticket through our Customer Billing Area. Notices to the CUstomer shall be given via electronic mail to the individual listed as the Primary Customer Contact on the Order. Notices are deemed received on the day transmitted, or if that day is not a business day, on the first business day following the day delivered. The Customer may change his, her, or its notice address by a notice given in accordance with this section.
White Label Reselling.
Customers of ShoutcastCity reseller SHOUTcast hosting plans are authorized to resell server resources under their own brand. ShoutcastCity reserves the right to contact any sub-users on ShoutcastCity's servers for the purpose of server stability, server upgrades, or violations of the Terms of Service Agreement and/or the Acceptable Use Policy (AUP) and/or applicable law.
ShoutcastCity shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond ShoutcastCity's control, including, without limitation, significant failure of a portion of the power grid, significant failure of the Interent, natural disaster, fire, flood, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorist activity, or other events of a magnitude or type for which precautions are not generally taken in the industry.
The Agreement shall be governed by the laws of the State of West Virginia, exclusive of its choice of law principles, and the laws of the United States of America, as applicable. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. Exclusive venue for all disputes arising out of or relating to the agreement shall be the State and Federal courts in Ohio County, West Virginia, and each party agrees not to dispute such personal jurisdiction and waives all objections thereto.
Each party acknowledges and agrees that the other party retains exclusive ownership and rights in its trademarks, service marks, trade secrets, inventions, copyrights, and other intellectual property. Neither party may use the other party's name or trade mark without the other party's prior written consent. The parties intend for their relationship to be that of independent contractors and not a partnership, joint venture, or employer/employee. Neither party will represent itself to be agent of the other. Each party acknowledges that it has no power or authority to bind the other on any agreement and that it will not represent to any person that it has such power or authority. This Agreement may be amended only by a formal written agreement signed by both parties under official supervision of a notary public. The terms on the Customer's purchase order or other business forms are not binding on ShoutcastCity unless they are expressly incorporated into a formal written agreement signed by both parties under official supervision of a notary public.
A party's failure or delay in enforcing any provision of the Agreement will not be deemed a waiver of that party's rights with respect to that provision or any other provision of the Agreement. A party's waiver of any of its rights under the Agreement is not a waiver of any of its other rights with respect to a prior, contemporaneous or future occurrence, whether similar in nature or not. The captions in the Agreement are not part of the Agreement, but are there for the convenience of the parties. The following provisions will survive expiration or termination of the Agreement: Fees, indemnity obligations, provisions limiting liability and disclaiming warranties, provisions regarding ownership of intellectual property, these miscellaneous provisions, and other provisions that by their nature are intended to survive termination of the Agreement.
There are no third party beneficiaries to the Agreement. The Customer may not transfer the Agreement without Benson Media, LLC's prior written consent. Benson Media, LLC's approval for assignment is contingent on the assignee meeting ShoutcastCity's and Benson Media, LLC's credit approval criteria. Benson Media, LLC may assign the Agreement in whole or in part. This Agreement together with the Order and the AUP constitutes the complete and exclusive agreement between the parties regarding its subject matter and supersedes and replaces any prior understanding or communication, written or oral.
Right to Refusal of Service.
ShoutcastCity may refuse to accept any customer or website for participation in the Benson Media, LLC hosting network as determined by Benson Media, LLC and/or ShoutcastCity at its sole discretion.
This Agreement together with the Order and the AUP constitutes the complete and exclusive agreement between the parties regarding its subject matter and supersedes and replaces any prior understanding or communication, written or oral.