Exhibit 10.13
000 Xxxxxxx Xxxxxx
Xxxxxxx Xxxx, XX 00000
[LOGO] LIQUID AUDIO 850.549.2000
Fax: 000.000.0000
xxx.xxxxxxxxxxx.xxx
HOSTING SERVICE AGREEMENT
SERVICES PROVIDED BY LIQUID AUDIO
1. Liquid Audio, Inc. ("Liquid Audio") shall provide Customer with hosting
services for the Liquefied Content (as defined in Section 4 below) on the
terms set forth in this Agreement. The Liquefied Content will be hosted and
maintained on Liquid Audio's servers, equipment and physical and
telecommunications facilities in accordance with the terms attached hereto.
Liquid Audio shall provide for connectivity of the Liquefied Content to the
internet, and shall enable public Web browser access to the host server with
a reasonably consistent level of availability, subject to scheduled
maintenance downtime. Liquid Audio has the right to control and direct the
means by which the hosting services are performed and may at its discretion
subcontract these services to third party internet service providers. Liquid
Audio shall provide a reasonable level of technical support for the hosting
services and such additional support as may be agreed upon between Customer
and Liquid Audio.
2. Liquid Audio shall provide Customer with remote access to computer
hardware, server software bandwidth and electronic commerce web page
templates and functionality as necessary to publish the Liquefied Content
onto the internet. Customer will be responsible for all host server content
management relating to the Liquefied Content, including file uploads pursuant
to Section 4 below. This Agreement does not transfer any title, rights or
licenses to any software, hardware, documentation or any intellectual
property embodied or used in connection with the services provided.
3. Liquid Audio shall also provide electronic commerce credit card
processing services for digital downloads of the Liquefied Content. Liquid
Audio shall process credit card orders relating to digitally downloaded music
on behalf of Customer using Liquid Audio's merchant bank account. Liquid
Audio shall provide Customer with statements detailing the number of songs
downloaded and any proceeds collected. Liquid Audio shall provide such
statements and remit any net proceeds collected to Customer within 30 days
following the end of each calendar month. Liquid Audio shall deduct from such
proceeds amounts related to bank processing fees, charge backs, credits and
Liquid Operation Center transaction fees. Liquid Audio has the right to
retain any net sales proceeds of Customer as partial offset for any past due
amounts owed to Liquid Audio.
CUSTOMER RESPONSIBILITIES AND OBLIGATIONS
4. Customer shall be responsible for encoding music tracks, samples and
other content (the "Liquefied Content") in Liquid Audio Format pursuant to a
separate license agreement to use Liquid Audio's Liquifier software, and for
publishing the Liquefied Content and any related graphics and text to the
host server. Customer shall designate the Liquefied Content click through
buttons with Liquid Audio's trademarks (LIQUID AUDIO and/or related icons
available from Liquid Audio's Web site), and Liquid Audio grants to Customer
a nonexclusive, non-transferable revocable license for such use. If Liquid
Audio encodes Liquefied Content as a service for and on behalf of Customer,
Customer shall be solely responsible for Liquefied Content under the terms
and conditions set forth in this Agreement. Liquid Audio agrees to encode
Liquefied Content as prescribed by Customer in a professional manner.
Customer agrees to test Liquefied Content encoded by Liquid Audio for quality
and accuracy and shall communicate any exceptions or corrections to Liquid
Audio in writing within five days of the date Liquefied Content is published
on host server.
5. Customer shall solely be responsible for the Liquefied Content it
publishes via the hosting services provided by Liquid Audio including but not
limited to data, graphics, artwork, and copyright/trademark notices. Customer
shall defend, indemnify, hold harmless Liquid Audio from all liabilities and
costs including reasonable attorney fees arising from any and all claims by
any person arising out of Customer's use of the services, including without
limitation any content. Customer represents and warrants that it has accrued
all necessary rights to publish and/or sell Liquefied Content via services
provided under this Agreement and will comply with any obligations it may
have under third party mechanical and/or performance rights agreements.
Liquid Audio may report mechanical and performance rights information to
agencies that the Customer is under contract with. Such right however, does
not relieve any existing contractual reporting or financial obligations the
Customer may directly have with such rights agencies. Liquid Audio reserves
the right to suspend or terminate services immediately upon notice to
Customer if Liquid Audio has reasonable grounds to believe that Customer is
utilizing services illegally or is in violation of any agreement with Liquid
Audio.
6. Customer shall be responsible for reporting and payment of any sales
taxes resulting from commerce transactions hereunder and shall indemnity and
hold Liquid Audio harmless from any claim, liability or penalty assessed or
imposed by any taxation authority having jurisdiction over sales hereunder.
LIQUID MUSIC NETWORK SYNDICATION
7. Liquid Audio owns and operates the Liquid Music Network (the "LMN"),
pursuant which Liquid Audio distributes on a syndicated basis an exclusive
database of music programming and other content in Liquid Audio Format (the
"LMN Programming") for public performance and digital delivery to Web sites
that are licensed as LMN syndication affiliates. Customer hereby grants
Liquid Audio a nonexclusive licenses to reproduce, distribute, perform,
display, deliver and make available the Liquefied Content, in whole or in
part, as part of the LMN Programming, to end users via the LMN licensed Web
sites, and to use the Liquefied Content for the purpose of marketing,
advertising and promoting the LMN and the
availability of the Liquefied Content on the LMN, in all media whether known
or hereafter derived on a worldwide basis for as long as Customer makes the
Liquefied Content available hereunder. Liquid Audio and/or its affiliate
websites shall be responsible for the design of the LMN and the selection,
ordering and arrangement of the Liquefied Content as part of the LMN
Programming, which remain subject to change by Liquid Audio from time to time
in its sole discretion. Liquid Audio and its affiliate websites have the
right to exclude any Liquefied Content from the LMN that is deemed
inappropriate. Net sales proceeds from digital downloads of the Liquefied
Content shall be payable to Customer pursuant to Section 3 above.
LIQUID OPERATIONS CENTER
8. Liquid Audio's Liquid Operations Center ("LOC") is intended to
facilitate the monitoring, distribution sale and payment of royalties on the
Liquefied Content. Customers are restricted to those areas of the LOC as
designated for access in accordance with the hosting services provided to
Customer hereunder. Customer may not, nor attempt to, gain unauthorized
access to the LOC's computer systems or data bases, or to any transaction or
performance rights logs, nor attempt to circumvent or disable any features of
the LOC. All data provided by the LOC shall remain the sole and exclusive
property of the LOC and Liquid Audio and the use of such data shall be
limited to those expressly authorized in writing by the LOC. CUSTOMER MUST
REGISTER COMPLETE AND CORRECT RIGHTS MANAGEMENT INFORMATION FOR EACH
SEPARATELY AVAILABLE PIECE OF MUSIC OR OTHER CONTENT (E.G., EACH TRACK OF AN
ALBUM) WITH THE LOC AND INCORPORATE THE REGISTRATION INFORMATION IN THE
ENCODING PROCESS BEFORE ENCODING AND DISTRIBUTING SUCH MUSIC/CONTENT USING
LIQUID AUDIO SOFTWARE. FAILURE TO REGISTER AND INCORPORATE THE REGISTRATION
INFORMATION IN THE ENCODING PROCESS MAY REQUIRE RE-ENCODING BEFORE THESE
FEATURES CAN BE USED. CUSTOMER WILL INDEMNIFY LIQUID AUDIO AND THE LOC FOR
CUSTOMER'S VIOLATION OF SUCH REQUIREMENTS.
TERMS AND PAYMENT TERMS
9. Customer agrees to pay the fees set forth in the Hosting Service
Agreement and accompanying quote, proposal or sales order form ("Sales
Quote") and authorizes Liquid Audio to charge Customer's credit card for fees
associated with this service agreement.
10. This Agreement shall commence on the Effective Date and continue for the
duration as described in the Sales Quote. This Agreement may be
extended upon mutual agreement between Liquid Audio and Customer. Either
party may terminate this Agreement in the event a) the other party materially
defaults in performing any obligation under this Agreement and such default
continues unremedied for a period of thirty days following written notice of
default, except in the case of default due to non-payment by Customer in
which Liquid Audio may terminate services.
MISCELLANEOUS
11. LIQUID AUDIO'S LIABILITY FOR ALL CLAIMS ARISING OUT OF THIS AGREEMENT
SHALL BE LIMITED TO THE AMOUNT OF FEES PAID BY CUSTOMER TO LIQUID AUDIO. IN
NO EVENT SHALL LIQUID AUDIO BE LIABLE FOR ANY LOSS OF DATA, LOSS OF PROFITS,
COST OF COVER OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES
ARISING FROM OR IN RELATION TO THIS AGREEMENT OR THE USE OF THE SERVICES,
HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY, LIQUID AUDIO
SPECIFICALLY DISCLAIMS ALL WARRANTIES EXPRESSED OR IMPLIED, INCLUDING BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THE SYSTEM OR SERVICES PROVIDED BY
LIQUID AUDIO HEREUNDER.
CUSTOMER ACCEPTANCE:
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CUSTOMER HAS READ AND HEREBY ACCEPTS AND AGREES TO THE TERMS AND CONDITIONS OF
THE HOSTING SERVICE AGREEMENT AND SALES QUOTE.
/s/ Xxxxxxx Xxxxx, CEO
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Company: International Net Broadcasting, LLC
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Date: August 31, 1998
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