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Advertising Sales Agreement

ReplaceAds™ Advertising Services Agreement

This agreement (“Agreement”) is between the person or entity submitting this offer (hereinafter referred to as “Broadcaster” “You” or “Your”) and Jetcast, Inc. for its ad sales service known as “ReplaceAds” (“ReplaceAds”). Once accepted by Jetcast, the terms of this Agreement shall be binding on, and enforceable by, the parties.  The effective date of this Agreement shall be the date upon which Jetcast emails Broadcaster notice of Jetcast’s acceptance of Your online application.

RECITALS

Broadcaster owns and operates the audio and/or video Internet broadcast(s) and related websites and media players listed in broadcaster’s application submitted herewith as amended from time to time (hereinafter “Broadcast” or “Broadcasts”), and has the right and ability to insert display, audio and/or video advertising before, during, and after, and in and around the Broadcast(s);

ReplaceAds has an Internet display, audio and video advertising sales business known as “ReplaceAds™” that sells Internet broadcast advertising avails to advertising agencies and advertisers;

Broadcaster would like ReplaceAds to sell Broadcaster’s ad inventory in the Broadcast(s); and

In consideration of the mutual obligations and covenants contained in this Agreement, Broadcaster and ReplaceAds hereby agree as follows:

TERMS

1.  Scope:  Broadcaster shall make its pre-roll, post-roll, and in-stream advertising inventory  (“Ad Inventory”) in the Broadcast(s) available to ReplaceAds for the purpose of having ReplaceAds sell such inventory to third party advertisers or entities/individuals acting on behalf of such advertisers (“Advertisers”).  Broadcaster hereby grants ReplaceAds the right to sell its Ad Inventory on a non-exclusive basis.  For the sake of clarity, Broadcaster shall be entitled to make some or all of the Ad Inventory available to others during the term of this Agreement.  ReplaceAds shall use commercially reasonable efforts to sell all of the Ad Inventory at prevailing market rates or higher (“Ad Sales Services”).

2.  Pricing:  ReplaceAds shall have the most favored pricing granted to any advertising agency or other entity permitted to sell any of the Ad Inventory.

3.  Term:  The Initial term of this Agreement shall be two (2) years (“Initial Term”), with automatic renewal for two successive one-year periods (“Term”).

4.  Exclusivity:  The terms of this Agreement shall be non-exclusive.  However, during the Term, so long as ReplaceAds is not in material breach of the terms hereof, ReplaceAds shall be the preferred sales entity of the Ad Inventory.  As such, in the event of a conflict between a ReplaceAds ad buy and an ad buy arranged by a third party on substantially the same terms and conditions, ReplaceAds’ ad buy shall prevail.

5.  Reports:  Broadcaster and ReplaceAds shall use their respective commercially resonable efforts to create and generate reports necessary for Advertisers and each other.

6.  Revenues:  ReplaceAds shall collect all revenues generated from ad sales of the Ad Inventory (“Gross Revenues”).

7.  Payments:  From the Gross Revenues, ReplaceAds shall remit payment to Broadcaster of the agreed net CPM rate for each media buy (“Broadcaster Fee” or “Broadcaster Fees”) within forty five days after the Advertiser has been invoiced for the respective ad buy.  ReplaceAds shall retain the remainder as its fee.  All payments shall be sent to Broadcaster at the address listed below.

8.  Termination:  Either Broadcaster or ReplaceAds may terminate this Agreement by written notice of termination to the other party upon a material breach by Broadcaster or ReplaceAds which has not been cured within thirty (30) days of written notice of such breach.

9.  Representations and Warranties, Indemnification: Each Party represents and warrants that it is authorized to enter into this Agreement, and that by doing so, it is not breaching, violating or interfering with any other agreement or arrangement. BROADCASTER HEREBY REPRESENTS AND WARRANTS THAT IT HOLDS THE REQUISITE COPYRIGHT, TRADEMARK AND/OR OTHER INTELLECTUAL PROPERTY RIGHTS TO BROADCAST BROADCASTER’S BROADCAST(S) AND OTHER CONTENT THROUGH THE INTERNET.  FURTHER, BROADCASTER REPRESENTS AND WARRANTS THAT THE RIGHTS DELEGATED TO JETCAST UNDER THIS AGREEMENT WILL NOT VIOLATE OR INFRINGE UPON THE COPYRIGHT, LITERARY, PRIVACY, PUBLICITY, TRADEMARK, SERVICE MARK OR ANY OTHER PERSONAL OR PROPERTY RIGHT OF ANY PERSON OR ENTITY AND THAT THE BROADCAST(S) AND OTHER CONTENT WILL NOT CONSTITUTE A LIBEL OR DEFAMATION OF ANY THIRD PARTY.  BROADCASTER REPRESENTS AND WARRANTS THAT IT HAS MET ANY AND ALL OBLIGATIONS TO ARTISTS, GUILDS, AUTHORS, COMPOSERS AND/OR ANY OTHER PARTICIPANTS IN THE PRODUCTION OF THE MEDIA CONTAINED IN THE BROADCAST(S).  BROADCASTER REPRESENTS THAT IT SHALL BE SOLELY LIABLE FOR PAYMENT OF ALL COPYRIGHT ROYALTY BOARD (“CRB”) IMPOSED FEES AND ROYALTIES AND ALL OTHER FEES AND ROYALTIES ASSOCITATED WITH THE BROADCASTING THE STATION, INCLUDING BUT NOT LIMITED TO PUBLISHING RIGHTS SOCIETIES LIKE SESAC, ASCAP, AND BMI.  BROADCASTER HEREBY AGREES TO INDEMNIFY AND HOLD JETCAST AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS AND ASSIGNS HARMLESS FROM ANY BREACH OF THESE REPRESENTATIONS AND WARRANTIES BY BROADCASTER.

BROADCASTER ASSUMES FULL RESPONSIBILITY FOR ALL INTELLECTUAL PROPERTIES AND CONTENT POSTED TO JETCAST'S SERVERS ON BROADCASTER'S BEHALF, INCLUDING ANY TRADEMARK, COPYRIGHT, PATENT OR OTHER INTELLECTUAL PROPERTY SUBMITTED TO JETCAST FOR EITHER ENCODING SERVICES AND/OR STRAIGHT POSTING TO OUR SERVERS FOR BROADCAST. JETCAST RESERVES THE RIGHT TO REMOVE WITHOUT NOTICE ANY MATERIAL WHICH, IN ITS SOLE OPINION, MAY RESULT IN A VIOLATION OF INTELLECTUAL PROPERTY RIGHTS OF OTHERS OR ANY OTHER APPLICABLE FEDERAL, STATE, COMMON, OR INTERNATIONAL LAWS OR REGULATIONS.

NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT TO THE CONTRARY, THE INDEMNITY SET FORTH IN THIS SECTION SHALL SURVIVE TERMINATION OF THIS AGREEMENT

10.  LIMITATION OF LIABILITY.  JETCAST PROVIDES SERVICES TO BROADCASTER ON AN “AS IS” BASIS.  JETCAST AND ITS THIRD PARTY SOFTWARE PROVIDERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.  NEITHER JETCAST NOR ITS THIRD PARTY SOFTWARE PROVIDERS SHALL BE LIABLE FOR ANY LOSS OF BUSINESS, LOST PROFITS, LOST DATA, LOST SAVINGS, FAILURE OF SECURITY OR ANY OR ALL INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, HOWEVER CHARACTERIZED, WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE.  UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, WILL (A) JETCAST, OR (B) WITH REGARD TO THIRD-PARTY SOFTWARE, THE APPLICABLE LICENSOR, BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE SERVICES, OR, IF APPLICABLE, THE THIRD-PARTY SOFTWARE, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE OR LOST PROFITS, OR DAMAGES THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION, FAILURE OF PERFORMANCE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO JETCAST’S RECORDS, PROGRAMS OR SERVICES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  IN THE EVENT OF ANY BREACH BY JETCAST OF THIS AGREEMENT, JETCAST’S LIABILITY TO BROADCASTER WILL NOT EXCEED THE AMOUNT EARNED BY JETCAST FROM AD SALES ON THE BROADCAST(S) DURING THE PREVIOUS TWELVE MONTHS.

11.  Taxes, Fees & Assessments: ReplaceAds shall remit Broadcaster Fees to Broadcaster without withholdings for taxes, fees and assessments.  Each party shall be liable only for their own taxes, fees and assessments.

12.  Press Release.  The Parties hereby agree to cooperate to prepare and release a joint press release regarding this Agreement, subject to the prior, written approval of each party, which may not be unreasonably withheld or delayed.

13.  Maintenance.  Subject to the terms and conditions of this Agreement, Broadcaster understands and agrees that Jetcast will attempt to keep its network of servers running continuously.  Jetcast servers will, from time-to-time, be disconnected due to routine maintenance windows, upgrades and other required events. Broadcaster understands and agrees that Jetcast’s servers may be unavailable for a variety of reasons, including, without limitation, (i) equipment malfunctions, (ii) periodic maintenance or repairs, or (iii) other causes beyond the control of Jetcast. In the event that Jetcast servers will need to be disconnected due to routine maintenance windows, upgrades or required events, Jetcast will attempt to notify the Broadcaster via electronic mail to the e-mail address or e-mail addresses which Jetcast has on file for the Broadcaster. Broadcaster assumes responsibility for making a separate backup copy of any information posted to our servers.  Jetcast is not responsible for lost materials or information.  Additionally, Broadcaster is responsible for testing any changes that Jetcast makes to Broadcaster’s Broadcast at Broadcaster’s request to make sure that such changes are in accordance with such Broadcaster request.

14.  Confidentiality. “Confidential Information” shall mean any term of this Agreement, and any proprietary information or data, either oral or written, received from and designated as confidential by the disclosing party. This shall include pricing information for Jetcast services. It does not, however, include information that (i) is already known by the recipient, (ii) become publicly known through no wrongful act of the recipient, or (iii) is received by the recipient from a third party without similar restriction and without breach of this section. In addition, under no circumstances shall Broadcaster’s Confidential Information include any Broadcaster Content or any other content, software, materials or other information delivered by Broadcaster to Jetcast to be posted on Jetcast’s servers. Each party agrees that it will use the same care to protect against the unauthorized duplication, use, publication, or disclosure of such Confidential Information of the other party as it uses to protect its own proprietary and Confidential Information, and will not use or disclose such Confidential Information except in connection with the purposes of this Agreement, unless authorized in writing by the other party. All materials, including copies and summaries, containing the other party’s Confidential Information shall be destroyed or returned to such party, as instructed by such party, by the recipient promptly upon request.

15.  Force Majeure.  Jetcast shall not be liable to the Broadcaster under this Agreement for any delay or failure to perform its obligations under this Agreement if such delay or failures arise from any cause(s) beyond such party's reasonable control, including by way of example labor disputes, strikes, acts of nature, floods, fire, lightning, utility or communications failures, earthquakes, vandalism, war, acts of terrorism, riots, insurrections, embargos, or laws, regulations or orders of any governmental entity. Notwithstanding the foregoing, Jetcast shall exercise due diligence to resume performance hereunder as soon as commercially possible.

16.  Misc. Broadcaster hereby grants to ReplaceAds, the right to use Broadcaster’s marks in sales and promotion material in order to allow ReplaceAds to achieve the purpose of this Agreement.  Furthermore, Broadcaster hereby authorizes ReplaceAds to make the Broadcasts available to guides and devices in order to expand the listenership and time spent using the Broadcast(s).  Each party shall, at its own expense, make, obtain, and maintain in force at all times during the term of this Agreement, all applicable filings, registrations, reports, licenses, permits and authorizations necessary to perform its obligations under this Agreement.  From time to time, for the convenience of Broadcaster, Jetcast may refer Broadcaster to certain third party software or services, such as ad replacement software providers.  Jetcast’s referral to any such third party software or service does not constitute an endorsement by Jetcast of such third party software or service; consequently, Jetcast hereby disclaims all liability associated with Broadcaster’s use of such third party software or service.  This Agreement shall be governed by the law of the State of California.  The only valid forum for any dispute arising under this agreement shall be the state courts located in Los Angeles County, California. Should any provision of this Agreement be judged invalid or unenforceable, the rest of the agreement shall remain in full force and effect. This Agreement shall be binding upon Broadcaster’s successors and assigns.  This Agreement may not be assigned by Broadcaster without Jetcast’s written permission except by succession.  Jetcast may assign this Agreement.  Any waiver of any provision of this Agreement shall not constitute a modification to this Agreement or a permanent waiver of such provision unless it is in writing and signed by an officer of Jetcast.

17.  Entire Agreement. This Agreement, together with ReplaceAds’ Terms & Conditions, found at http://jetcast.com/genuload/Terms.pdf, as amended from time to time, and ReplaceAds’ Privacy Policy found at http://jetcast.com/genuload/Privacy.pdf, as amended from time to time, the terms of which are hereby included in this Agreement by this reference as though both are fully set forth herein, constitutes the entire Agreement of the parties as to the subject matter hereof and supersedes any and all prior oral or written memoranda, understandings and agreements as to such subject matter.

*I have read and I agree to the Advertising Sales Agreement

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