This is an Agreement between you and Burgess Management Corporation (“NexusCast”), and this Agreement governs both your legal rights with regards to our Internet radio audio streaming and hosting services (“Services”) we provide to you through. You explicitly and implicitly agree to be bound by the terms and conditions of this Agreement every time you use our Services.
We may amend this Agreement at any time by posting the amended terms on our Website. Such changes become effective immediately.
Types of Accounts
Currently, NexusCast offers both a free trial account (“Trial Account”) and a paid account (“Paid Account”). More information on the types of accounts that NexusCast offers and the costs involved can be found at http://www.nexuscast.com/plans.html. Please read this document in its entirety regarding account restrictions. NexusCast reserves the right, at any time, to change access levels or rights or to impose additional fees for access to and use of our Services.
Our ServicesYou understand that your use of our Services does not constitute any ownership in our servers, delivery mechanisms, and other related equipment, software, and processed.
NexusCast offers our Services through our SHOUTcast™ or Icecast™ technology. You can stream your Internet radio through our servers.
We also offer our AutoDJ service as a free service with your NexusCast account. AutoDJ enables you to upload MP3 music files through our Services and then stream these files through our SHOUTcast or Icecast servers. The service enables you to control the order songs play in, or optionally, play songs in a random order. Additionally, you may modify aspects of the service, such as fade time for songs. We restrict the right to remove and/or add features to AutoDJ at any time, as well as discontinue its availability at any time with or without notice or liability to you.
Creating Your Account
To setup your account, you must be at least 18 years of age, able to enter into binding contracts, and able to provide necessary account information to us. Before we can establish your account, we must receive the necessary payment for the Services selected and be able to verify your account information. It is sole your responsibility to provide us with an active email address. If there are issues with your account, we will always contact you at this ancillary email address. It is your sole responsibility to make sure you maintain and monitor this email address. NexusCast reserves the right to immediately terminate your account if you provide false contact information of any kind. If you need assistance in verifying or changing such information, you can contact a NexusCast support representative.
You are responsible for safeguarding the password that you use to access the Services. You agree not to disclose your password to any third party. You agree to take sole responsibility for any activities or actions under your password, whether or not you have authorized such activities or actions. You will immediately notify NexusCast of any unauthorized use of your password. You acknowledge that if you wish to protect your transmission of Your Files to NexusCast, it is your responsibility to use a secure encrypted connection to communicate with the Services.
Trial Accounts
NexusCast offers Trial Accounts on an “as-is” basis at our sole discretion. You understand that only a single Free Account will be granted for a given domain address. NexusCast has no duty to provide Trial Accounts and has no liability to you if you cannot obtain one or if we terminate your Trial Account prior to the normal expiration of the given time period for the Trial Account. NexusCast may stop offering Trial Accounts without notice or liability to you at our sole discretion.
Any files you upload to our Services (“Your Files”) are considered to be solely yours, subject to the intellectual property claims of other parties. You are solely responsible for Your Files. NexusCast does not claim any ownership rights in Your Files. You acknowledge that NexusCast does not have any obligation to monitor Your Files for accuracy, completeness, appropriateness, or legality.
Consent to Access Your Account/Files
By using our Services, you consent to allow NexusCast to access your account and Your Files as necessary to provide Services to you as well as to insure your compliance with all of our legal documents.
Intellectual Property Infringement
NexusCast fully supports and follows the Digital Milennia Copyright Act, the Lanham Act, and other intellectual property laws of the United States of America. As such, you are prohibted from using our Services to infringe upon the intellectual property rights of others, including, but not limited to, unauthorized copying of copyrighted works. All such actions are grounds for the immediate termination of your account. NexusCast reserves the right to remove or disable access to infringing material without notice to you. If you are found, at our sole discretion, to be a repeated violator of intellectual laws, you will be presumed to be willful infringer and your account will be immediately terminated.
If you believe you are the victim of copyright violation by a party using our Services, please contact NexusCast immediately. You must provide notice to us in a form that substantively complies with the safe harbor provisions of the Digital Millennium Copyright Act, 17 USC. § 512(c)(3)(A), which provides that a notification of claimed infringement must be a written communication provided to the designated agent that includes substantially the following: (a) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works, a representative list of such works; (c) 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 us to locate the material; (d) information reasonably sufficient to permit us to contact you such as an address, telephone number, and if available, an electronic mail address at which you may be contacted; (e) a statement that the you have a good faith belief that use of the material in the manner complained of is not authorized; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that you are the copyright owner or are authorized to act on behalf of the copyright owner. If you do not provide the requisite notice as required above, we are required by law to honor your request.
Service Restrictions
NexusCast services, including all related equipment, networks and network devices are provided only for authorized customer use. NexusCast systems may be monitored for all lawful purposes, including to ensure that use is authorized, for management of the system, to facilitate protection against unauthorized access, and to verify security procedures, survivability, and operational security. During monitoring, information may be examined, recorded, copied and used for authorized purposes. Use of NexusCast system(s) constitutes consent to monitoring for these purposes.
Failure to respond to email from our abuse department within 48 hours may result in the suspension or termination of Services. All abuse issues must be dealt with via trouble ticket/email and will have a response within 48 hours.
NexusCast reserves the right to require changes or disable as necessary any web site, account, database, or other component that does not comply with its established policies, or to make any such modifications in an emergency at its sole discretion.
Furthermore, you agree not to do any of the following while using the Services:
NexusCast will have the right to investigate and prosecute violations of any of the above, including intellectual property rights infringement and security issues, to the fullest extent of the law. NexusCast may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms of Service. You acknowledge that NexusCast has no obligation to monitor the Services, but has the right to do so for the purpose of operating the Services, to ensure all users comply with this and our other legal agreements, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body.
Server Limits
NexusCast does not generically put a limit on the amount of listeners that may connect to our servers, nor the amount of bandwidth a customer may use. However, SHOUTcast and Icecast servers do require a number of listeners to be defined. By default, your SHOUTcast or Icecast server will be installed with 1,000 listener limit. You may request a limit increase by contacting our NexusCast Client Services department. We will do our best to accommodate your request, but you understand that we are not required to nor do we have legal liability to you or anyone else if we cannot.
Bitrate Limit
You may only use up to the maximum bitrate that you purchased with your account. You may increase your bitrate by purchasing a higher amount. If you exceed your maximum bitrate, we reserve the right to suspend your account without notice. If you are repeat offender of this policy, we reserve the right to cancel your account terminated without notice.
Listener Overload/Denial of Service Policy
NexusCast has a zero tolerance stance against overloading our servers with more listeners than for which you are not authorized. You understand that if you overload our servers, we reserve the right to suspend your account without notice. If you are repeat offender of this policy, we reserve the right to cancel your account terminated without notice.
Payment
You agree to make payment for the Services in advance of the time period during which such Services are provided by NexusCast. You agree that Services are billing on a recurring basis and unless you notify NexusCast of your desire to cancel/modify Services, you will continue to be billed for such Services, even if your account is suspended.
As a NexusCast customer, it is your responsibility to ensure that your payment information is up to date, and that fees are paid on time. All Services are billed on a recurring basis, unless otherwise stated in writing by NexusCast. NexusCast reserves the right to bill your credit card or billing information on file with us. If you fail to pay any amount due to NexusCast within three (3) days of its due date, your account will be suspended. If you fail to pay any amount due to NexusCast within 30 days of its due date, your account may be terminated, solely at NexusCast’s discretion. Your account will not be restored from a suspension until payment in full for past due amounts has been received. NexusCast may, at its sole discretion, require you to post a security deposit if you make repeated late payments.
NexusCast reserves the right to change the monthly payment amount and any other charges at any time.
NexusCast’s acceptance of partial payment does not relieve you of the duty to pay the remaining balance.
No Refunds or Charge-backs
You agree that NexusCast offers no refunds for Services and all payments for Services are final. Furthermore, you shall not institute any form or charge-back for any fees paid to us, unless you have been the victim of identity theft and provide us with a valid police report. Any other form of charge-back will result in the immediate termination of your account, your obligation to pay an administrative cost recovery fee of $100.00 to us for each such charge-back, and may subject you to criminal investigation for fraudulently obtaining our Services.
Collection Fees
You agree that should NexusCast have to institute collection proceedings to recover past due amounts under this Agreement, you will pay for the costs of such collection including reasonable attorneys fees.
Cancellation/Suspension/Termination of Your Account
You may only cancel your account by completing the appropriate online form as found in your Client Portal. Your cancellation shall not be effective until the end of the billing cycle, unless you choose to terminate your account immediately. You shall remain responsible for payment of any amounts you owe NexusCast until this time.
NexusCast reserves the right to suspend access to your account or terminate your account, at our sole discretion and at any time with or without notice to you, should you violate the terms of this Agreement.
If your account is suspended, you will not be able to access your account or Your Files on our servers until the suspension is lifted. You shall still remain responsible for payment of any amounts you owe NexusCast while your account is suspended.
If your account is terminated, you will not be able to access your account as well as any of Your Files on our servers. Depending on the egregiousness of your actions, NexusCast may, at our sole discretion, provide you with a CD of Your Files. You shall still remain responsible for payment of any amounts you owe NexusCast and you shall be responsible for fees up until the date your account is officially terminated by NexusCast.
Backups and Data Loss
While NexusCast does back up its servers as part of its routine maintenance, NexusCast is not responsible for loss of Your Files. You should always maintain your own personal backup of Your Files.
Warranty Disclaimer
THE SERVICES PROVIDED BY NEXUSCAST AND ANY THIRD-PARTY SERVICE PROVIDERS ARE PROVIDED AS IS, AS AVAILABLE, AND WITHOUT ANY WARRANTIES OR CONDITIONS (EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OR TRADE). WE MAKE NO REPRESENTATIONS OR WARRANTIES, OF ANY KIND, EITHER EXPRESS OR IMPLIED, AS TO THE QUALITY, IDENTITY OR RELIABILITY OF ANY THIRD PARTY, OR AS TO THE ACCURACY OF THE POSTINGS MADE ON OUR WEBSITE BY ANY THIRD PARTY. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR ALL THE FOREGOING LIMITATIONS ON IMPLIED WARRANTIES, SO TO THAT EXTENT, IF ANY, SOME OR ALL OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability
IN NO EVENT SHALL WE OR OUR THIRD-PARTY SERVICE PROVIDERS BE LIABLE TO YOU OR ANY OTHER REGISTERED USER FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES PURSUANT TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF BUSINESS OPPORTUNITIES OR LOSS OF GOODWILL, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT WILL OUR LIABILITY TO YOU FOR ANY ACTION OR CLAIM RELATED TO OUR SERVICES PROVIDED UNDER THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE OR ANY OTHER THEORY OF LIABILITY, EXCEED $10 FOR FREE ACCOUNTS OR $100 FOR PAID ACCOUNTS. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR ALL THE FOREGOING EXCLUSIONS AND LIMITATIONS OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO TO THAT EXTENT, IF ANY, SOME OR ALL OF THESE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
Privacy Policy
Our Privacy Policy fully discloses how we will treat your information. However, we may disclose any your account information to law enforcement agencies or upon a valid court order without your further consent or notification.
Indemnification
You agree to defend, indemnify, and hold NexusCast, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses and expenses, including, without limitation, reasonable attorneys’ fees and costs, arising out of or in any way connected with: (i) your access to or use of the Services; (ii) your violation of this Agreement; (iii) your violation of any third party right, including without limitation any intellectual property right, including but not limited to right of attribution, publicity, confidentiality, property or privacy right; or (iv) any claim that Your Files, or your use of Files, caused damage to a third party, including without limitation claims that Your Files, or use of Files, infringe upon the rights of others.
Modification and Waiver
NexusCast will not be considered to have modified or waived any of our rights or remedies under this Agreement unless the modification or waiver is in writing and signed by an authorized representative of NexusCast. No delay or omission by NexusCast in exercising its rights or remedies will impair its rights or be construed as a waiver. Any single or partial exercise of a right or remedy will not preclude further exercise of any other right or remedy.
Severability
If any part of this Agreement is held to be unenforceable, the unenforceable part will be given effect to the greatest extent possible and the remainder will remain in full force and effect.
Assignment or Transfer
You will not transfer, assign or delegate your rights or obligations (including your account) under this Agreement to anyone and any attempt to do so will be null and void. NexusCast may assign this Agreement to its successor in interest without notice to you.
Force Majeure
Neither of the parties to this Agreement shall be responsible for the failure to perform or any delay in performance of any obligation hereunder due to labor disturbances, accidents, fires, floods, telecommunications or Internet failures, strikes, wars, riots, rebellions, blockades, acts of government, governmental requirements and regulations or restrictions imposed by law or any other similar conditions beyond the reasonable control of such party. The time for performance of such party shall be extended by the period of such delay.
Choice of Law
Any dispute regarding this Agreement shall by governed by law of the State of Minnesota in the United States of America, except its conflict of law principles. You agree to submit to the personal jurisdiction of the courts in the State of Minnesota in the United States.
Arbitration
By using any NexusCast services, you agree to submit to binding arbitration. If any disputes or claims arise against NexusCast or its subsidiaries, such disputes will be handled by an arbitrator of NexusCast's choice. An arbitrator from the American Arbitration Association or the National Arbitration Forum will be selected in the State of [your state]. Arbitrators shall be attorneys or retired judges and shall be selected pursuant to the applicable rules. All decisions rendered by the arbitrator will be binding and final. The arbitrator's award is final and binding on all parties. The Federal Arbitration Act, and not any state arbitration law, governs all arbitration under this provision. You are also responsible for any and all costs related to such arbitration. Any dispute arising from Services must be brought within one (1) year of the event giving rise to dispute or such dispute is considered null and void.
This is the entire and exclusive Agreement between NexusCast and you regarding the Services and supersedes and replaces any prior agreements between NexusCast and you regarding Services.