This document constitutes an Agreement between DMS Broadcasting (dba: EnergyTalkRadio.com), Inc. and its affiliates, successors, parents, subsidiaries, assigns, licensees, and designees (collectively and individually, "DMS Broadcasting (dba: EnergyTalkRadio.com)") and Users (Guest Hosts), Users representatives, assigns and licensees (hereinafter collectively referred to as "Users"), pursuant to which Users request and agree to, among other things, use the services available on the DMS Broadcasting (dba: EnergyTalkRadio.com).com web service and website (collectively, the "Site"). Users agree to review this Agreement carefully before using any of the services affiliated with the Site, and by using the Site and the affiliated Services (as that term is defined in DMS Broadcasting (dba: EnergyTalkRadio.com)'s Terms of Use, which is incorporated by reference herein), Users acknowledge and agree that Users have read and shall abide by the terms and conditions set forth in this Agreement and in DMS Broadcasting (dba: EnergyTalkRadio.com)'s Terms of Use (the "Terms of Use").
1. Terms of use/Registration
Users acknowledge and agree that Users will not copy or distribute any part of the Services in any medium unless such copying or distribution is facilitated by DMS Broadcasting (dba: EnergyTalkRadio.com) or effectuated via use of DMS Broadcasting (dba: EnergyTalkRadio.com)'s mechanisms, and that Users will not alter or modify any part of the Services other than as may be reasonably necessary to use the Services for their intended purpose and in accordance with this Agreement and the Terms of Use. In order to create or Show programs featuring Radio Program content (hereinafter referred to as "Guest Show Programs" or "Guest Show Programming") for transmission via the Site, provide all information requested. Users further confirm and represent that Users have read and reviewed the Terms of Use and that Users agree to be bound by the Terms of Use. To the extent that the Terms of Use conflict with the terms and conditions set forth herein with respect to Users Internet Radio Programming activities, this Agreement shall govern.
2. Charges and Payments
Users will be charged $149.00 USD per month for use affiliated with the Site. DMS Broadcasting (dba: EnergyTalkRadio.com) reserves the right, however, to change this policy at any time and to charge fees on a term basis for access to the Site and for Users use of its basic Services. All terms and conditions regarding charges and payments (as set forth in Paragraph 7 herein) shall apply. DMS Broadcasting (dba: EnergyTalkRadio.com) will notify Users of any policy changes regarding fees, and the amounts to be charged for access to the Site and use of its basic Services, by posting such information on the Site.
3. Guest Show Programs
DMS Broadcasting (dba: EnergyTalkRadio.com) permits its users to set up profiles ("Guest Shows") and create Guest Show Programs for replay via DMS Broadcasting (dba: EnergyTalkRadio.com)'s website. Users agree to comply with all of DMS Broadcasting (dba: EnergyTalkRadio.com)'s Terms of Use, policies and rules, whether set forth in this Agreement, posted on the Site or provided to Users individually which are subject to change from at anytime at DMS Broadcasting (dba: EnergyTalkRadio.com)'s sole discretion. Users further agree to comply with the following additional rules and regulations, with respect to all Guest Show Programs created by Users for transmission via the Site:
- Any Internet Radio Programs relayed to DMS Broadcasting (dba EnergyTalkRadio.com) from a Web site owned and operated by a third party ("Derived Programs") must be authorized by the owner(s) of rights in the original programs from which such Internet Radio Programs are derived. In the event Users choose to create Derived Programs for transmission via the Site, Users represent and warrant that Users have obtained all authorization necessary to allow such Derived Programs to be transmitted to the public via the Site, including any necessary licenses required under the Digital Millennium Copyright Act (the "DMCA"), U.S. Copyright Law, and any other applicable copyright laws (requires Adobe Acrobat plug-in).
- United States Copyright Law, and any other applicable copyright laws apply (the "DMCA").
- With respect to Users uploading of Guest Show Programs on the Site, DMS Broadcasting (dba: EnergyTalkRadio.com) shall provide Users with storage space on DMS Broadcasting (dba: EnergyTalkRadio.com)'s servers at its sole discretion. Depending on the then-existing storage policies of DMS Broadcasting (dba: EnergyTalkRadio.com), which will be specified on the Site.. Users agree not to exceed whatever storage space, if any, that may be allotted to Users by DMS Broadcasting (dba: EnergyTalkRadio.com), which storage space may be modified by DMS Broadcasting (dba: EnergyTalkRadio.com) at any time in its sole discretion, subject only to other express terms posted on the Site or specified elsewhere in this Agreement.
- The amount of storage space on DMS Broadcasting (dba EnergyTalkRadio.com)'s servers is determined by DMS Broadcasting (dba EnergyTalkRadio.com).
Users represent and warrant (In addition to any other representations and warranties contained herein) that:
- Users Internet Radio Programs comply fully with all relevant provisions of the DMCA (requires Adobe Acrobat plug-in) and any and all other applicable laws and regulations;
- Users have full right and power to enter into and perform this Agreement, and have secured all third-party consents necessary to enter into this Agreement;
- Users are a natural person and are acting solely in Users capacity as an individual, and are not acting for or on behalf of any Terrestrial or Internet Radio Programs;
- Users and have the full and complete right to agree to the terms contained in this Agreement;
- Users' programs will not defame any third parties, constitute impermissible hate speech or otherwise violate any rights of free speech of any third parties;
- Users do not infringe upon the copyright or any other statutory or common-law intellectual property rights (including without limitation trademark, service mark, and trade name rights), proprietary rights (including without limitation trade secrets), or rights of privacy or publicity of any third party;
- with respect to each sound recording uploaded by Users to DMS Broadcasting (dba EnergyTalkRadio.com), either:
- Users own or control all rights in any such sound recording including all rights in the underlying musical composition; or have written consent from recording artists.
- Users will be exclusively responsible for the entire content of each Guest Show Program created or Showed by Users or under Users authority, including the content that Users generate as well as any content contributed in any manner by any guest or caller.
- DMS Broadcasting (dba: EnergyTalkRadio.com), in its sole discretion, shall determine Users compliance with the foregoing prohibitions set forth in this agreement, and reserves the right to delete from the Site without prior notice any material that it deems to be non-complying or objectionable for any reason.
- The content on the Site, except material submitted by Users and by third party users of the Site, including without limitation, the text, software, scripts, graphics, photos, sounds, music, videos, interactive features and the like (collectively, the "DMS Broadcasting (dba: EnergyTalkRadio.com) Material"), and the trademarks, service marks and logos contained therein ("Marks"), are owned by or licensed to DMS Broadcasting (dba: EnergyTalkRadio.com), subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. Material submitted by third party users of the Site, including without limitation, the text, software, scripts, graphics, photos, sounds, music, videos, interactive features and the like (collectively, the "Third Party Materials"), and the Marks contained, are owned by or licensed to such third party users, subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. As used herein, EnergyTalkRadio.com Material and Third Party Materials are collectively referred to as the "Content." Content on the Site is provided to Users AS IS for Users information and personal use only and may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners. Without limiting the generality of the foregoing, Users are not permitted to use the Marks in connection with "spam" email messages or newsgroup postings. For the purposes of these Terms of Use, "spam" has the meaning generally understood among Internet users, and includes without limitation "unsolicited electronic mail advertisements". DMS Broadcasting (dba: EnergyTalkRadio.com) and each of the respective owners of the Third Party Materials reserve all rights not expressly granted in and to the Site and the Content.
- Users may not attempt to gain unauthorized access to the DMS Broadcasting (dba: EnergyTalkRadio.com) infrastructure or to interfere or disrupt the service.
- Users agree to comply with all laws and regulations applicable to Users use of the Site and any materials Users upload to, import onto or transmit via DMS Broadcasting (dba: EnergyTalkRadio.com)'s servers.
- Embedding of audio files by Users is not allowed. DMS Broadcasting (dba: EnergyTalkRadio.com) reserves the right to protect its business and thus users of the Site who attempt to bypass the DMS Broadcasting (dba: EnergyTalkRadio.com) home page will have all of their content (audio, video, flash, images, etc.) removed from the Site at DMS Broadcasting (dba: EnergyTalkRadio.com)'s sole discretion. Users who violate this regulation may also be blocked from uploading or playing any further content across DMS Broadcasting (dba: EnergyTalkRadio.com)'s network of sites. A conspicuous link back to http://www.EnergyTalkRadio.com must be placed on any site on which any DMS Broadcasting (dba: EnergyTalkRadio.com) users embed images or the audio files associated with any Guest Show Programs.
4. License
Users grant DMS Broadcasting (dba: EnergyTalkRadio.com) a royalty-free, non-exclusive, perpetual right and license throughout the world to transmit, perform publicly, display publicly, perform digitally, distribute and syndicate Users Guest Show Programs in whole or in part, for any and all purposes, to the extent permitted by law, and the right to grant to third parties the right to do any or all of the foregoing. Without limiting the foregoing provisions DMS Broadcasting (dba: EnergyTalkRadio.com) shall have a royalty-free, non-exclusive, perpetual right and license throughout the world to transmit and permit its end users, and other internet web site operators and their end users, to access Users Guest Show Programs via the Site and any other web sites. DMS Broadcasting (dba: EnergyTalkRadio.com) shall not be liable for any unauthorized uses of Users Guest Show Programs by end users or any other third parties.
6. Warranties and Representations
In addition to any other representations and warranties contained herein, Users represent and warrant the following:
- All factual assertions that Users have made and will make to DMS Broadcasting (dba: EnergyTalkRadio.com) are true and complete;
- With respect to each musical recording uploaded by Users to DMS Broadcasting (dba: EnergyTalkRadio.com), either Users own or control all rights in any such sound recording;
- Users are of the age of majority and have the full and complete right to agree to the terms contained in this Agreement;
- Users have full right and power to enter into and perform this Agreement, and have secured all third-party consents necessary to enter into this Agreement;
- Users own or have the necessary licenses, rights, consents, and permissions to use and to authorize DMS Broadcasting (dba: EnergyTalkRadio.com) to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all Programs and the content thereof to enable inclusion and use of the same in the manner contemplated by the Site and these Terms of Service;
- Users have the written consent, release, and/or permission of each and every identifiable individual person included in the content of Users Guest Show Programs to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of the same in the manner contemplated by the Site and these Terms of Service;
- Users understand that when using the Site, Users will be exposed to Guest Show Programs and other content from a variety of sources, and that DMS Broadcasting (dba: EnergyTalkRadio.com) is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such Guest Show Programs and the content thereof. Users further understand and acknowledge that Users may be exposed to Guest Show Programs and other content that are inaccurate, offensive, indecent, or objectionable, and Users agree to waive, and hereby do waive, any legal or equitable rights or remedies Users have or may have against DMS Broadcasting (dba: EnergyTalkRadio.com) with respect thereto, and agree to indemnify and hold DMS Broadcasting (dba: EnergyTalkRadio.com), iits owners, operators, affiliates, and/or licensors, harmless to the fullest extent allowed by law regarding all matters related to Users use of the Site.
7. Refund/Cancellation Policy
Users must provide at least thirty (30) days prior written notice to DMS Broadcasting (dba: EnergyTalkRadio.com) or Users service will automatically extend and Users will be billed for an additional term of the same length as Users previous term. There will be no refunds for current, paid service any part of which service has been rendered in any given term. If Users would like to cancel Users service at the end of any given paid term, Written notice of cancellation must be mailed to DMS Broadcasting (dba: EnergyTalkRadio.com), emailed to info@energytalkradio.com. DMS Broadcasting (dba: EnergyTalkRadio.com) may choose, but is not obligated, to issue a refund on a case-by-case basis.
8. Termination
DMS Broadcasting (dba EnergyTalkRadio.com) may terminate Users access to the Site immediately and without notice if: (1) Users breach this Agreement; (2) Users infringe the intellectual property rights of any third party in connection with Users use of the Site; (3) DMS Broadcasting (dba EnergyTalkRadio.com) is unable to verify or authenticate any information Users provide to it; or (4) any material uploaded or transmitted by Users to or via the Site violates any applicable laws. However it is not DMS Broadcasting (dba EnergyTalkRadio.com)'s responsibility to monitor any illegal or unlawful activity.
9. Documentation
Upon the request of DMS Broadcasting (dba EnergyTalkRadio.com) Users agree to immediately produce any and all documents and other evidence related to Users rights to create Users Internet Radio Programs for transmission via the Site. Users agree to sign such documentation as may be required to effectuate the grant of rights and release contemplated herein.
10. Consideration
Users understand and agree that the consideration stated in this Agreement is the complete and total consideration due to Users from DMS Broadcasting (dba: EnergyTalkRadio.com). Users shall not look to DMS Broadcasting (dba: EnergyTalkRadio.com) for any compensation or further consideration.
11. Assignment.
This Agreement may be assigned by DMS Broadcasting (dba EnergyTalkRadio.com). DMS Broadcasting (dba EnergyTalkRadio.com) may, without the other Party's consent, assign this Agreement to (i) a parent, subsidiary, affiliate, division or corporation controlling, controlled by or under common control with the Party; (ii) a successor corporation related to the Party by merger consolidation, bankruptcy reorganization or government action; or (iii) a purchaser of substantially all of the Party's assets. In the event that such assignment occurs, DMS Broadcasting (dba EnergyTalkRadio.com), its successors, or assigns may terminate this Agreement by giving immediate written notice to Broadcaster. Notwithstanding such termination, the indemnities, warranties and representations set forth herein shall remain in full force and effect.
12. Disputes
The interpretation and enforcement of this Agreement shall be governed by the laws of the State of California, without regard to its conflicts of laws principles. Users and DMS Broadcasting (dba: EnergyTalkRadio.com) agree that any and all disputes arising out of or related to this Agreement shall be resolved solely through binding the then-current rules of the American Arbitration Association. Any arbitration arising out of or related to this Agreement shall be held in the City of San Francisco and State of California, before one independent arbitrator agreed upon by both parties. Any arbitration will be final and binding, and the arbitrator's order will be entered and enforceable in any court of competent jurisdiction.
13. Unlawful Conduct
A. Notifications of any unlawful conduct should be sent to DMS Broadcasting (dba: EnergyTalkRadio.com)'s Designated Agent at info@energytalkradio.com DMS Broadcasting (dba: EnergyTalkRadio.com).com.
In particular, if Users are a copyright owner or an agent thereof and believe that any Guest Show Program or the content thereof infringes upon Users copyrights, Users may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing DMS Broadcasting (dba: EnergyTalkRadio.com)'s Designated Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled;
- Information reasonably sufficient to permit the service provider to contact Users, such as an address, telephone number, and, e-mail;
- A statement that Users have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that Users are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
B. Counter Notifications should be sent to DMS Broadcasting (dba: EnergyTalkRadio.com)'s Designated Agent info@energytalkradio.com. If Users elect to send us a counter notice, to be effective it must be a written communication that includes the following (please consult Users legal counsel or See 17 U.S.C. Section 512(g)(3) to confirm these requirements):
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
- A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake that the material to be removed/disabled.
- The subscriber's name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located.
- A physical or electronic signature of the subscriber.
Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.
14. Remedy
In no event shall Users be entitled to injunctive or other equitable relief based on any act or omission of DMS Broadcasting (dba: EnergyTalkRadio.com), or any breach of this Agreement by DMS Broadcasting (dba: EnergyTalkRadio.com). Users sole remedy for any breach of this Agreement by DMS Broadcasting (dba: EnergyTalkRadio.com) shall be the commencement of an arbitration proceeding for money damages, if any.
15. Entire Agreement
There are no understandings, agreements, conditions or representations, oral or written, express or implied, with reference to the subject matter hereof, that are not merged herein, expressly referenced herein, or superseded hereby. This Agreement substantiates the entire understanding of the parties.
16. Independent Contractor
Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise between Users and DMS Broadcasting (dba: EnergyTalkRadio.com).
17. Severability
The provisions of this Agreement are independent of each other and the invalidity of any provision or a portion thereof shall not affect the validity or enforceability of any other provision. In the event that any particular provision is found to be invalid or unenforceable, such provision is to be replaced with a valid and enforceable provision that approximates as closely as possible the intent of the parties as reflected in the original provision.
18. No Waiver
Any delay or failure on the part of DMS Broadcasting (dba: EnergyTalkRadio.com) to enforce any rights hereunder to which it may be entitled shall not be understood as a waiver of the right and privilege to do so at any later time.
19. Indemnification
Users indemnify and hold harmless DMS Broadcasting (dba: EnergyTalkRadio.com), and the officers, directors, employees, partners, principals, agents and representatives of DMS Broadcasting (dba: EnergyTalkRadio.com), from, against and in respect of any and all demands, claims, actions, causes of action, liabilities, losses and expenses, including reasonable attorneys' fees, arising out of or relating to (a) Users participation in or use of the Site or any of the websites, facilities, software, transmission capabilities, or Services of DMS Broadcasting (dba: EnergyTalkRadio.com); (b) any breach by Users of any covenant, representation or warranty made by Users in this Agreement; (c) any claims that Users Guest Show Programs or other use of the Site violates the intellectual property rights of any third parties, defames any third parties, constitutes impermissible hate speech or otherwise violates any rights of free speech or any other rights of any third parties; and (d) any portion of the content of any Guest Show Program created or Showed by Users or under Users authority, including the content that Users generate as well as any content contributed in any manner by any guest or caller on any Guest Show Program created or Showed by Users or under Users authority. This defense and indemnification obligation will survive any termination of this Agreement and Users use of the Site.
20. Survival
All provisions which must survive in order to give effect to their meaning shall survive any expiration or earlier termination of this Agreement, including, without limitation all of Users representations, warranties and indemnification obligations.
21. Disclaimer of Warranties; Limitation of Liability
DMS Broadcasting (dba energytalkradio.com) makes no representation that the operation of the DMS Broadcasting (dba energytalkradio.com).com service will be uninterrupted or error free, and DMS Broadcasting (dba energytalkradio.com) will not be liable for the consequences of any interruptions or errors.
Except as specified in this agreement, DMS Broadcasting (dba energytalkradio.com) does not make any warranty in connection with the subject matter of this agreement and hereby disclaims any and all implied warranties, including all implied warranties of merchantability and fitness for a particular purpose regarding such subject matter. In no event will DMS Broadcasting (dba energytalkradio.com), be liable to users for any special, incidental or consequential damages, whether based on breach of contract, tort (including negligence) or otherwise, whether or not DMS Broadcasting (dba energytalkradio.com) has been advised of the possibility of such damage.
Without limiting the foregoing provisions, DMS Broadcasting (dba: energytalkradio.com) shall have no liability for any losses or injuries, whether in contract, tort, warranty or otherwise, or for any lost profits or direct, indirect, special, consequential or punitive damages resulting, in whole or in part, from:
- Any errors, omissions, or inaccuracies in the Information regardless of how caused, or delays or interruptions in delivery of the Information;
- Any viruses,, Trojan horses, bugs or the like, which may be transmitted to or through the Site by any third party;
- DMS Broadcasting (dba: EnergyTalkRadio.com)'s actions, omissions or negligence, or for contingencies beyond its control, in procuring, compiling, or delivering the Information, the Site or the Services;
- Any decision made or action taken or not taken in reliance upon the Information furnished in connection with the Site, whether such Information is posted;
- Users use of, or the inability to use, the Services or the Site, even if DMS Broadcasting (dba: EnergyTalkRadio.com) has been advised of the possibility of such damages;
- Users use of, or reliance on the Information, or from the use by Users of the Internet generally; and
- Any unauthorized access to or use of DMS Broadcasting (dba: EnergyTalkRadio.com)'s servers and/or any and all personal information and/or financial information stored therein.
In addition, notwithstanding any provision of these Terms of Use to the contrary, DMS Broadcasting (dba: EnergyTalkRadio.com)'s total liability to Users is limited to credit for services rendered.
