This is a user agreement (the “User Agreement”) by and between RADIOYO, INC. and its affiliates, successors, parents, subsidiaries, assigns, licensees, and designees (collectively “RadioYo”) and you, your representatives, assigns and licensees (hereinafter referred to as “You”), to provide You with access to the RadioYo Website (the “Website”) and its services (the “Services”), which include but are not limited to the making available of transmissions by RadioYo and any other such content or services that RadioYo makes available on the Website. All terms capitalized herein are either defined in this User Agreement, or the Registration Agreement, available at www.radioyo.fm, which is fully incorporated herein by reference.
By utilizing the Services made available on the Website, You acknowledge that you have fully read, understood, and assent to the terms and conditions of this User Agreement. You also represent and warrant that any information you submit is truthful and accurate and that by using the Website, You are not in violation of any of the applicable laws or regulations. RadioYo may, without warning, terminate your access to the Website if it is found that you are not in compliance with any of the provisions of this User Agreement. RadioYo reserves the right to make changes to this User Agreement at any time. Updated versions of the User Agreement will appear on the Website and are effective immediately. You are responsible for regularly reviewing the User Agreement. Continued use of the Website after any such changes constitutes your consent to such changes.
RadioYo provides Registrants with the ability to create, promote, stream, download or otherwise transmit original online radio programs. Registrants have the option to create original shows, buy, sell, or share audio clips, or engage in the many interactive features that RadioYo, including by not limited to its online message board. As a non-Registrant, your access to the RadioYo’s services is limited to listening only.
Users of the RadioYo Service have the option to access certain services without registration. For additional benefits and flexibility, including but not limited to the ability to register as a RadioYo “Host,” “Sound Designer, or Registered “Listener” (see Registration Agreement), access to the RadioYo message board and certain content not suitable for all ages, RadioYo requires registration, and is currently free of charge. At its sole discretion and at any time, with advance notice to You, RadioYo may change, alter or amend the payment scheme for any of the Services it makes available on the Website.
RadioYo does not assume any liability for, including but not limited to, any content or material made available on third party Websites, databases, networks, servers, software, programs, applications, products or services (“Third Party Content”), to which RadioYo may link to or otherwise provide access, and by using the Website, you expressly indemnify RadioYo for any and all liability arising from your use of such Third Party Content. Unless explicitly indicated otherwise, RadioYo does not intend any such links contained on the Website to act as endorsements of or by the Third Party Websites linked thereon. Your dealings advertisers found on or through the Website are solely between you and such advertiser. RadioYo will not be responsible or liable for any loss or damage of any kind resulting from any such dealings or as the result of the presence of such advertisers on the Website.
The RadioYo platform (the “Platform”) is owned and operated by RadioYo. The content, interfaces, features, information, design, computer code, products, graphics, software, services and all other elements of the Platform that are provided by RadioYo (“RadioYo Materials”) are owned by RadioYo or its subsidiaries or affiliates and protected by United States copyright, trade dress, patent, trademark laws, international conventions, and all other relevant rights and laws. Except as expressly authorized by RadioYo, by using the RadioYo Website, You agree not to sell, license, distribute, copy, modify, publicly perform, display, transmit, publish, edit, adapt or create derivate works or otherwise unauthorized use of the RadioYo Materials. You shall not acquire any rights, title or interest to the RadioYo Materials, except for the limited rights set for in these Terms, and RadioYo reserves all rights not expressly granted in these Terms.
RadioYo allows non-registrants the ability to stream live or pre-recorded radio segments on the Website. By using the Website, You represent and warrant that when streaming such content, You will not interfere with the streaming of the Platform in any way or otherwise impede the function of the Platform, in contravention of the DMCA or any other anti-circumvention law.
You also understand that RadioYo is not limited to users who are over the age of 13 years. When using the Platform, You will be exposed to user-generated content, created by registrants of RadioYo (“Registrant Generated Content”) and as such, RadioYo is not responsible for the quality, integrity, or accuracy of the Registrant Generated Content posted on the Platform. By using the Website, You hereby waive any legal or equitable rights or remedies You may have against RadioYo with respect to any such inaccuracies, offensive, indecent, or objectionable material You may find on the Platform. RadioYo does not endorse, nor affiliate directly with any of the Registrant Generated Content posted to the Platform and under no circumstance will RadioYo be liable for any Registrant Generated Content made available on the Platform.
RadioYo is under no legal obligation to monitor or remove any of the Registrant Generated Content posted or created by registrants of RadioYo, and in its sole discretion, may terminate, limit, or refuse the account of any user found in violation of any of the Terms of this Agreement or any affiliated RadioYo Agreement, at any time for any reason, with or without notice and with no liability of any kind unto RadioYo. All Registrant Generated Content is the sole responsibility of the registrant from whom such content originated. If You believe any rights or interests have been violated by Registrant Generated Content made available on the Platform, You agree to comply with the DMCA take-down procedures set forth herein and to indemnify RadioYo from any liabilities arising therefrom.
RadioYo may make changes to or discontinue use of any media, products or services available within the Platform at any time, without notice, and shall not be liable for any such changes or interruptions, which may result in any loss of access to or use of the Platform of the RadioYo Services.
You agree to indemnify and hold harmless RadioYo, its suppliers, licensors and partners, officers, directors, employees, agents and representatives of any of them from any and all claims, losses, obligations, damages, liabilities, costs or debt Your expenses (including attorney’s fees) arising out of: 1) Your use of the Platform; 2) Your violation of this User Agreement or the rights of any other person or entity, including claims that any Registrant Generated Content infringes or violates any third party intellectual property rights; and 3) Your breach of the representations, warranties, and covenants contained in this User Agreement.
If any intellectual property hosted on the Platform infringes your intellectual property rights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing RadioYo’s Designated Agent with the following information in writing:
· 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 works or materials claimed to have been infringed, or, if multiple works or materials on the RadioYo Platform are covered by a single notification, a representative list of such works on the RadioYo Platform;
· 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, and information reasonably sufficient to permit RadioYo to locate the material;
· information reasonably sufficient to permit RadioYo to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
· a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the owner, its agent, or the law; and
· a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Designated Agent Contact Information . RadioYo’s designated agent for notices of claimed infringement can be contacted at:
Via E-mail: firstname.lastname@example.org
Via U.S. Mail: c/o CDAS, 41 Madison Avenue, 34th floor, New York, NY 10010
Counter Notification . If you receive a notification from RadioYo that material made available by you on or through the Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide RadioYo with a counter notification. A counter notification must be in writing, provided to RadioYo’s Designated Agent through one of the above identified methods and include substantially the following:
· A physical or electronic signature of the subscriber;
· 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 or misidentification of the material to be removed or disabled; and
· 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, or if the subscriber’s address is outside of the United States, for any judicial district in which RadioYo may be found, and that the subscriber will accept service of process from the person who provided notification under Section 17.3 above or an agent of such person.
False Notifications of Claimed Infringement or Counter Notifications . The Copyright Act provides that:
[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [RadioYo] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
For the avoidance of doubt, only notices submitted under the Digital Millennium Copyright Act and the procedures set forth in this Section 17 should be sent to the Designated Agent at email@example.com or to the postal address identified above. Any other comments, compliments, complaints or suggestions should be sent to firstname.lastname@example.org.
This User Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflicts of laws principles. You and RadioYo agree that any and all dispute arising out of or related to this User Agreement shall be resolved solely through binding arbitration pursuant to the then-current rules of the American Arbitration Association. Any arbitration arising out of or related to this Agreement shall be held in the Borough of Manhattan in the City and State of New York, 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. The arbitrator will be chosen within (30) days of the date that any issue is submitted to arbitration (the “Submission Date”), discovery will be completed within sixty (60) days after the Submission Date, the arbitration hearing will occur within ninety (90) days after the Submission Date, and the arbitrator must render his or her decisions, in writing, within thirty (30) days after the conclusion of the arbitration hearing. The prevailing party shall be entitled to an award of the costs of any arbitration, including reasonable attorney’s fees.