Quu Master Services and License Agreement

This Master Services and License Agreement (the “Agreement”), dated as of the “Effective Date” listed on the SERVICES AND LICENSE AGREEMENT, is made and entered into by and between the ”Broadcaster” listed on the SERVICES AND LICENSE AGREEMENT, and Quu, Inc., a Washington corporation (the “Company”).

RECITALS

WHEREAS, the Company has developed and commercialized interactive services for the radio industry accessed by Broadcaster through websites and mobile applications;

WHEREAS, Broadcaster desires to enter into this Agreement with the Company to obtain the benefits of those services for each of its Radio Stations.

AGREEMENT

NOW THEREFORE, in consideration of the foregoing recitals, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1. DEFINED TERMS.

1.1 Capitalized terms used in this Agreement and the exhibits attached hereto shall be defined to have the meaning set forth in Exhibit C.

2. BROADCASTER’S AFFILIATES AND RADIO STATIONS; ACKNOWLEDGEMENT AND AGREEMENT.

2.1 Broadcaster’s Affiliates and Radio Stations.

(a) Each of Broadcaster’s Affiliates and Radio Stations listed on the SERVICES AND LICENSE AGREEMENT are permitted to access and use the Quu Services identified on the SERVICES AND LICENSE AGREEMENT. Except as permitted pursuant to Section 2.2, all other radio stations and affiliates owned or controlled by Broadcaster are prohibited from accessing or using the Quu Services. Broadcaster shall be directly responsible, jointly and severally, for each Radio Stations’ and each Affiliates’ compliance with and, to the extent such occurs, breach of the terms and conditions of this Agreement.

(b) Broadcaster shall use reasonable efforts to  promptly notify the Company, within no less than thirty (30) calendar days, of the sale, exchange or other transfer or disposition of all or substantially all or the assets or stock of any Affiliate or Radio Station identified on the SERVICES AND LICENSE AGREEMENT and in such event, such

Radio Station or Affiliate shall discontinue access and use of the Quu Services unless a master service and license agreement, substantially in the form of this Agreement, with pricing provisions and for a Term satisfactory to the Company, has been executed and delivered to the Company granting access to and use of the Quu Services to such Affiliate or Radio Station.

 

2.2 Acknowledgement and Agreement. An Affiliate or Radio Station, not previously identified on the SERVICES AND LICENSE AGREEMENT, may be added to the SERVICES AND LICENSE AGREEMENT, subject to Company’s prior written consent not to be unreasonably withheld or delayed, upon the execution of and delivery to the Company of an acknowledgement and agreement in a form satisfactory to the Company, confirming such station’s or affiliate’s agreement to be bound by the terms and conditions of this Agreement (the “Acknowledgement and Agreement”). Upon execution of the Acknowledgement and Agreement, each such Radio Station and Affiliate shall be granted access to and use of the Quu services and shall be bound by the terms and conditions of this Agreement. Upon execution of an Acknowledgement and Agreement, Broadcaster will become jointly and severally liable for all fees and payments due from such Affiliate and Radio Station.

3. LICENSE GRANTS.

3.1 Quu Service. Subject to the terms and conditions of this Agreement, the Company hereby grants the Broadcaster during the Term, a non-exclusive, non-transferable, limited license to:

(a) access and use the Quu Services identified with each Radio Station on the SERVICES AND LICENSE AGREEMENT, including uploading Ad Enhancing Content to the Quu Services platform;

(b) permit Radio Advertisers to access and use certain features of the Quu Services identified on the SERVICES AND LICENSE AGREEMENT, including uploading Ad Enhancing Content to the Quu Services platform; and

(c) permit listeners via the Radio Websites and supported mobile devices to access and use certain features of the Quu Services identified on the SERVICES AND LICENSE AGREEMENT.

3.2 Quu Marks. Subject to the terms and conditions of this Agreement, the Company hereby grants to Broadcaster during the Term, a non-exclusive, non-transferable, limited license to use the service mark, Quu®, and such other service marks including logos, as Company may identify from time to time (“Quu Marks”), and related images, graphics and other content Company may supply, solely to market, promote and advertise the availability of the Quu Services via the Radio Websites and supported mobile devices. All marketing, promotional and advertising material employed by Broadcaster relating to or otherwise referencing the Quu Services, including the placement and presentation of the Quu Services on the Radio Websites, will display the “powered by Quu®” attribution, in a graphic .tif, .jpg or other format as the Company may supply from time to time. All use and display of the Quu Marks are subject to trademark usage and quality control guidelines of Company; all “powered by Quu®” attribution graphics provided by Company in .tif, .jpg or other format will be compatible with the font size, style, color and technology of the Radio Websites. Upon the discovery of any use by a third party of the Quu Marks that is, or potentially is, unauthorized, or an actionable imitation or an infringement of Company’s rights to the Quu Marks, Broadcaster shall notify the Company in writing, setting forth such Knowledge it has related to such use.

3.3 No Other Rights. Except for the license and rights expressly granted herein, no other licenses, rights or interests are granted in or to the Quu Services or Quu Marks, and all rights in or related thereto are expressly retained by Company.

4. QUU SERVICES.

4.1 Implementation.

(a) Promptly after the Effective Date, the Company will use commercially reasonable efforts to configure its back end systems to create a connecting interface between the Radio Websites and systems, on the one hand, and the Quu Services platform, on the other hand, to enable the deployment of the Quu Services identified on the SERVICES AND LICENSE AGREEMENT with respect to each Radio Station.

(b) Broadcaster shall provide the Company and Company shall provide Broadcaster with commercially reasonable assistance to integrate the Quu Services with Broadcaster’s systems, including but not limited to the integration of the Quu Services with the Radio Websites.

(c) Broadcaster will provide such real-time data and daily traffic data as reasonably requested by the Company to be used by Company solely for the delivery of Services to Broadcaster. Under no circumstances shall Company license, distribute or share Broadcaster real-time data or daily traffic data with any third-party without prior written approval from Broadcaster. Following the expiration or termination of the Agreement, and Broadcaster’s request, Company will destroy all Broadcaster real time data and traffic data.

(d) At Broadcaster’s sole discretion, Broadcaster may upload Ad Enhancing Content to the Quu Services platform and create campaigns and programs to enable interactivity of advertisements and other content run on the Radio Stations and Radio Websites via the Quu Services platform.

4.2 Integration with Third Party Services. Company has established relationships with vendors providing Third Party Services that are compatible with and which technologically and functionally integrate with the Quu Services systems. Company will provide a list of these vendors, as updated from time to time, to Broadcaster. Broadcaster, in its sole discretion, will select the Third Party Services vendors it deems best suited to provide Third Party Services, provided, however, that if the Third Party Services vendor selected by Broadcaster is not one with which the Company has an established relationship, the selection of such Third Party Services vendor will be subject to:

(i) the Company, in its sole discretion, executing a written contract with such Third-Party Services vendor, or

(ii) the Company’s approval, not to be unreasonably withheld or delayed, of (x) the terms and conditions of such Third Party Services contract, which shall include the terms and conditions governing Third Party Services vendor’s access to and use of the Quu Services, including but not limited to language satisfactory to the Company making it a third party beneficiary of such contract, and such other terms as may reasonably be requested by the Company, and (y) the technical feasibility, using commercially reasonable efforts, of the Third Party Services Data Integration, as determined by the Company in its sole discretion.

In the event the above conditions are satisfied, the terms and conditions of this Agreement, including the fees and amounts due to the Company hereunder, will not be modified or amended in any way except as may be agreed to by Company and Broadcaster in writing. For the avoidance of doubt, this Section 4.2 does not and is not intended to give the Company a prior right to approve third party content that appears on the Radio Websites outside the Quu Services platform or to approve any of Broadcaster’s existing Third Party Services contracts unrelated to Quu Services, including but not limited to studio automated studio software, traffic software or billing software contracts.

4.3 Quu Services Promotion. Broadcaster will use commercially reasonable efforts to promote the Quu Services to radio advertisers and listeners. Subject to the requirements of Section 3.2 of this Agreement, Broadcaster will determine the most appropriate means of promoting Quu Services on the air and on the Radio Websites. Broadcaster, in its sole discretion, will determine the length, placement, frequency, nature and form of spots (including live readers, liners, and pre-recorded spots). The Company may provide the Broadcaster with the copy for the promotional spots.

4.4 Terms of Use.

(a) Restrictions. Broadcaster will not engage, or attempt to engage, or permit or assist any Radio Advertiser User, listener or any other person or entity in any of the following activities:

1. sublicense, assign, or transfer any rights to the Quu Services except as may be expressly provided for in this Agreement;

2. modify, disassemble, decompile or reverse engineer the Quu Services or any part thereof;

3. copy or reproduce the Quu Services or any part thereof;

4. access or use any data through the Quu Services other than data provided by them or on their behalf, including Radio Advertiser Users’ Ad Enhancing Content, listeners’ data, and any reports or statistics generated by the Quu Services which are specifically intended for use by the Broadcaster;

5. breach any security measure intended to protect the Quu Services, software or other technology utilized by the Quu Services platform;

6. damage or misappropriate any aspect of the Quu Services or data contained on the Quu Services platform;

7. damage, impair, or harm equipment or software used with the Quu Services;

8. spam or otherwise engage in like unproductive use of the Quu Services platform;

9. prevent or maliciously reduce or impair the accessibility of the Quu Services platform; or

10. copy or use the documentation provided by the Company or any part thereof in any manner other than as permitted herein.

(b) Unauthorized Activity. If Broadcaster has acknowledge Knowledge of (i) any actual or threatened activity which violates the restrictions set forth in Section 4.4(a) above, or (ii) any actual or threatened activity that is illegal, infringes or threatens to infringe upon the rights of any person or entity, potentially giving rise to a Claim, or otherwise creating or potentially creating a liability upon the Company, Broadcaster will immediately notify the Company and, at the request of the Company, take such actions as Company reasonably directs to stop the activity or threatened activity and to mitigate the effects of such activity including: (w) discontinuing and/or limiting any improper access to the Quu Services platform and any data thereon; (x) preventing any further use and disclosure of any improperly obtained data; (y) destroying any copies of improperly obtained data that may have been made on their systems; and (z) otherwise attempting to mitigate any harm from such events as the Company may reasonably direct.

4.6 Radio Users. Broadcaster agrees to (a) designate at least one Quu System Administrator who will be responsible for granting access to and use of the Quu Services platform to employees, agents and contractors of the Broadcaster, Radio Advertiser Users and listeners (“Radio Users”); (b) inform Radio Users who are granted access to and use of the Quu Services platform that access to and use of the Quu Services platform is subject to the terms and conditions of use, as provided by the Company, from time to time, (“Radio User Terms”) set forth on a login page, to which Radio Users must accept and agree prior to being granted access to and use of the Quu Services platform; and (c) use its commercially reasonable efforts to prevent misuse or harm caused by any Radio Users violation of the Radio User Terms up to and including terminating the rights of any such Radio Users to access and use the Quu Services platform.

4.7 Unlawful Data. If Broadcaster has acknowledge Knowledge of or have been notified that any data or other content, including Ad Enhancing Content provided to the Quu Services platform by or on behalf of Broadcaster, Radio Advertiser Users or Radio Users, infringes upon the rights of any person or entity, potentially creating a Claim, or otherwise creating or potentially creating a liability on Company, upon the request of and at the direction of the Company, Broadcaster will use its commercially reasonable  efforts to assist Company in mitigating Company’s liability, including the removal and destruction of any such content or data.

4.8 Training Services. Company shall provide Training Services to Broadcaster pursuant to the terms and conditions, set forth in Exhibit D.

4.9 No Representations. The parties acknowledge and agrees that neither is not authorized to make any representations or warranties of any kind on behalf of the other to any person or entity including Radio Advertiser Users and listeners.

5. FEES, PAYMENTS AND PERFORMANCE ROYALTIES.

5.1 Fees.

(a) Broadcaster agrees to pay Company the fees and other payments set forth in Exhibit A, for access to and use of the Quu Services, which fees and payments will include consideration for licensing of the Quu Services and all other rights granted herein. Broadcaster will be jointly and severally responsible for the payment of all amounts owed to Company under this Agreement by its Affiliates and Radio Stations.

(b) In addition to the remedies set forth in Section 7 of this Agreement, if an uncured Payment Default exists and is continuing, the Company shall have the right to suspend the license and rights granted hereunder until such past due amounts are received by the Company

5.2 Taxes. Each party shall be responsible for, and shall pay, all taxes, duties and assessments imposed on it in connection with the Quu Services, including all sales, use, excise and other taxes. Each party will hold the other harmless from all claims and liability arising from its failure to report or pay any such taxes, duties, and assessments.

5.3 Music Performance Fees. There are currently no public performance or music license fees or royalty payments related to the technology used by Quu in embedding music videos, however in the future if any such fees arise,  Broadcaster will be immediately notified by Company and may elect to immediately  terminate this Agreement, or continue the Agreement and become responsible for the payment of such fees which may be required to be paid to any party such as BMI, ASCAP, SESAC, or any like organization solely as a result of the use of Company technology for stations licensed herein, regardless of the content method of delivery.

6. CONFIDENTIALITY.

6.1 Disclosure. The parties acknowledge that in their performance of this Agreement, each party may be required from time to time to disclose Confidential Information to the other party. The parties, therefore, covenant and agree as follows:

(a) Except as expressly permitted herein, no receiving party shall disclose to others, nor permit any of its employees, contractors, agents, consultants or representatives, to disclose to others, any Confidential Information which has been provided to it by the disclosing party without the disclosing party’s prior written consent.

(b) Each receiving party shall use the Confidential Information disclosed to it solely for the purpose of carrying out its responsibilities and obligations under this Agreement, or to exercise its rights and license to use the Quu Services, pursuant to the terms and conditions of this Agreement.

(c) Each receiving party shall take the same measures, but no less than reasonable measures, to protect the confidential nature of the Confidential Information disclosed to it by the disclosing party as it takes to protect its own trade secrets and other Confidential Information, including restricting disclosure of the Confidential Information to its employees, contractors, agents, consultants or representatives who have a need to know such Confidential Information to carry out the responsibilities and obligations required under this Agreement, and requiring that all such employees, contractors, agents, consultants or representatives be advised of the obligations under this Agreement with respect to such Confidential Information.

6.2 Limitations. No party’s obligation of confidentiality hereunder shall extend to any of the following:

(a) information which was previously known, without obligation of confidentiality, by the receiving party, prior to any disclosure from the disclosing party; or

(b) information which is or otherwise becomes publicly available through no breach of this Agreement by a receiving party; or

(c) information which was received without restriction from any person or entity who the receiving party reasonably believes is not in violation of any duty of non-disclosure regarding such information; or

(d) information which the receiving party developed independently of any disclosures of such information by the disclosing party; or

(e) information which is required to be disclosed pursuant to order of a court of competent jurisdiction, administrative agency or governmental body, or by any law, rule, regulation, subpoena, or any other administrative or legal process, or by applicable regulatory standards, provided, to the extent permitted by applicable law or regulation, the receiving party provided the disclosing party with sufficient opportunity to oppose such disclosure; or

(f) information which is disclosed by the receiving party in connection with any judicial or other proceeding involving this Agreement, provided, that the receiving party uses commercially reasonable efforts to obtain confidential treatment of any such information disclosed.

7. TERMINATION FOR BREACH.

 (a) Company and Broadcaster may terminate this Agreement by giving the other party written notice of such termination if: (i) the other party commits, or has an Insolvency Act occur against it; (ii) the other party fails to make any payment required under this Agreement (a “Payment Default”) and such Payment Default continues uncured for twenty (20)  business days after receipt by the defaulting party of written notice of non-payment or (iii) the other party commits a material breach of or default under this Agreement and the breach or default is not cured within thirty (30) calendar days after receipt of written notice of intention to terminate specifying the nature of the breach or default. Any such termination shall terminate all rights and licenses granted herein to Broadcaster or, if breach is caused by Company, shall terminate all obligations of Broadcaster hereunder except those obligations identified in Section 12.13.

(b) Company and a particular Affiliate or Radio Station may terminate this Agreement by written notice of termination if: (i) the other party commits, or has an Insolvency Act occur against it; (ii) the other party fails to make any payment required under this Agreement (a “Payment Default”) and such Payment Default continues uncured for twenty (20) business days after receipt by the defaulting party of written notice of non-payment or (iii) the other party commits a material breach of or default under this Agreement and the breach or default is not cured within thirty (30) calendar days after receipt of written notice of intention to terminate specifying the nature of the breach or default. Any such termination shall terminate all rights and licenses granted herein to the Radio Station and Affiliate, but the Agreement shall continue in full force and effect with respect to Company, Broadcaster and its remaining Radio Stations and Affiliates or, if breach is caused by Company, shall terminate all obligations of Broadcaster hereunder except those obligations identified in Section 12.13.

7.4 Effect of Termination. The termination of the Agreement for any reason (other than for breach on the part of Company) shall not relieve the Broadcaster of the obligation to pay Company all amounts that have accrued and are due and owing under this Agreement through the date of termination.

8. WARRANTIES AND DISCLAIMERS.

8.1 Mutual Warranties. Each party represents and warrants to the other parties that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such party’s execution, delivery or performance of this Agreement; and (c) the execution, delivery and performance of this Agreement by such party does not violate the laws of any jurisdiction or the terms or conditions of any other agreements to which it is a party or by which it is otherwise bound.

8.2 Company Representations and Warranties. Company represents and warrants that: (i) nothing contained in these Terms and Conditions or required by Company’s performance hereunder will place Company in breach of any other contract or agreement to which it is bound or violate any applicable law, including those governing privacy; (ii) Company owns (or has been duly licensed to use and/or distribute) all rights in the Services and API and Album Art and Artist Art and/or required in order to grant the licenses granted herein; (iv) Company warrants that any services provided hereunder shall be provided in a competent and workmanlike manner in accordance with industry standards and in accordance with the Service Level Commitments set forth on Exhibit A hereto (the “Service Level Commitments”). 

8.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 8, NEITHER COMPANY NOR BROADCASTER MAKES ANY OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED (WHETHER BY FACT OR OPERATION OF LAW), STATUTORY, OR OTHERWISE, AS TO THE QUU SERVICES OR ANY OTHER MATTER WHATSOEVER, INCLUDING, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD-PARTY RIGHTS, OR WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE IN TRADE, OR THAT THE QUU SERVICES WILL BE SECURE, UNINTERRUPTED OR ERROR-FREE, OR IS SUITABLE FOR THE PARTICULAR NEEDS OF BROADCASTER, RADIO ADVERTISER USERS, THE LISTENERS OR ANY THIRD PARTY. THE QUU SERVICES AND ALL PARTS THEREOF ARE PROVIDED “AS IS”.

9. INDEMNIFICATION.

9.1 Album Art and Artist Art: Company hereby represents, warrants and covenants to Broadcaster that (i) it has all requisite rights, waivers, permissions, licenses, clearances, power, and authority to perform its obligations hereunder; (ii) the Quu Service will source album art only from TiVo or other source(s) expressly agreed upon by Broadcaster; and (iii) the Quu Service  will not infringe upon the copyrights, rights of publicity, trademarks, patents or any other intellectual property rights of any third party.  Company will indemnify, defend and hold harmless Broadcaster, Licensee its affiliated companies, shareholders, officers, directors, members, employees and agents against all claims, actions, damages, judgments, demands, suits, costs and expenses (including reasonable outside attorneys’ fees and court costs), losses or liabilities of any nature arising from or connected with any breach of any of its covenants, representations or warranties hereunder.

9.2 By Company. Except for Album Art or Artist Art, Company will indemnify, defend and hold harmless Broadcaster, and its employees, agents, contractors, officers and directors, from and against any action, suit, proceeding, claim, judgment, settlement, damage, liability, cost or expense, including, reasonable attorney fees (collectively, “Claim”), arising out of or relating to infringement of any U.S. patent, U.S. copyright or U.S. trademark of any third party by the Quu Services or the Quu Marks except to the extent that such infringement arises from: (a) any data or content including the Ad Enhancing Content uploaded to the Quu Services platform by Broadcaster, Radio Advertiser Users, Radio Users or listeners, (b) use of the Quu Marks other than as expressly permitted pursuant to this Agreement, (c) use of the Quu Services other than as permitted pursuant to this Agreement, or otherwise in a manner for which it was not intended or designed, or (d) use of the Quu Services and Quu Marks by anyone other than the permitted licensees under this Agreement .

(a) If the Quu Services, or any portion thereof, become or, in Company’s reasonable judgment, are likely to become the subject of a Claim based upon infringement, then Company, at its option and expense, shall have the right to (i) procure for Broadcaster the continued right to use the Quu Service, (ii) replace or modify the Quu Services to make them non-infringing, or (iii) upon written notice, require Broadcaster to cease access to and use of the Quu Services for an indefinite period, or for a period pending Company’s satisfaction of clause (i) or (ii) of this subsection 9.1(a), or (iv) upon written notice, terminate the Agreement and Broadcaster’s access to and use of the Quu Services.

(b) The provisions of this Section 9.1 constitute the sole and exclusive remedy of Radio Broadcaster, and the sole and exclusive obligation and liability of Company, relating to a Claim that the Quu Services infringes any intellectual property right of a third party.

9.2 By Broadcaster. Broadcaster will indemnify, defend and hold harmless the Company, its employees, agents, contractors, officers and directors, from and against any Claim arising out of or relating to (i) Broadcaster’s exercise of the rights granted under the Agreement including the possession of, access to or use of the Quu Services by Broadcaster, Radio Advertiser Users and Radio Users; (ii) any representations or warranties made by the Broadcaster concerning the Quu Services that are not expressly authorized in writing by the Company; (iii) the Radio Websites; (iv) any data or content, including but not limited to the Ad Enhancing Content, uploaded to the Quu Services platform by Broadcaster, Broadcaster’s Radio Advertisers Users, or Broadcaster’s Radio Users, including any Claim that such content or data infringes the intellectual property or other rights of a third party or otherwise violates any applicable law, rule or regulation; or (v) breach of this Agreement by Broadcaster.

9.3 Indemnification Procedures. The parties’ respective obligations under Sections 9.1 and 9.2 shall be subject to the following requirements and conditions: (i) the party seeking indemnification (the “Indemnified Party”) shall promptly notify the party providing the indemnification (“Indemnifying Party”) in writing of the Claim (the failure to provide such notice shall not, however, relieve the Indemnifying Party of any of its indemnification obligations hereunder except to the extent that it is actually and materially prejudiced by such failure); (ii) the Indemnifying Party shall have sole control of the defense and settlement of the Claim subject to (a) Indemnified Party’s right to participate in the defense of such a Claim as set forth below in subparagraph 9.3(iv), and (b) the Indemnified Party’s approval in writing of any such settlement (which approval shall not be unreasonably delayed or withheld, except that it shall not be unreasonable for the Indemnified Party to withhold approval of any proposed settlement that involves any restriction of future action by such party or its indemnitees, or by the terms of which such party or its indemnitees are not to receive a general release of all the Claims or will suffer any material, avoidable or undue prejudice to its rights, assets or interests); (iii) the Indemnified Party shall provide the Indemnifying Party with all assistance, information and authority reasonably required for the defense and settlement of the Claim at the Indemnifying Party’s expense; and (iv) unless otherwise prohibited by the insurance policies of the Indemnifying Party, the Indemnified Party shall have the right to participate in the defense of any such Claim with counsel of its own choosing and at its own expense, but such participation will not relieve the Indemnifying Party of its indemnification obligations hereunder.

10. LIMITATION ON LIABILITY.

10.1 EXCEPT FOR LIABILITY ARISING UNDER SECTION 9, IN NO EVENT SHALL COMPANY OR BROADCASTER BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING THE QUU SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, INCLUDING, THE USE, INTERRUPTION OR DELAY, LOSS OR INABILITY TO USE THE QUU SERVICES, CLAIMS BASED UPON LOST REVENUES OR PROFITS, DELAYS, INTERRUPTION OR LOSS OF SERVICES, OR LOSS OF BUSINESS OR GOODWILL, LOSS OR CORRUPTION OF DATA, LOSSES RESULTING FROM QUU SERVICES FAILURE, MALFUNCTION, SHUTDOWN, FAILURE TO ACCURATELY TRANSFER, READ OR TRANSMIT INFORMATION, OR FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION, SYSTEM INCOMPATIBILITY OR PROVIDING INCORRECT COMPATIBILITY INFORMATION, OR BREACHES IN SYSTEM SECURITY. THE LIMITATIONS IN THIS SECTION 10 WILL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.

11. INTELLECTUAL PROPERTY.

11.1 Broadcaster acknowledges and agrees that the Quu Services, including all parts thereof and any documentation provided by Company, the Quu Marks, including all intellectual property rights in or related to the foregoing, and all goodwill symbolized thereby, are proprietary to Company and Company owns all right, title, and interest therein, subject only to the limited license expressly granted in this Agreement and all similar agreements with third parties. Any modification to or derivative work based upon the Quu Services, or any part thereof, shall be the sole property of Company. No other rights or licenses to Broadcaster, including any copyright, trade secret, patent, trademark or other right, shall be implied by or inferred from this Agreement, the licenses expressly granted hereby or the conduct of the parties in furtherance of the Agreement. Broadcaster will not permit any Radio Advertiser User or Radio User to delete or alter the copyright, patent, trademark, or other proprietary rights notices of Company appearing in or in connection with the Quu Services.

12. MISCELLANEOUS.

12.1 Independent Contractor. Each party will be and will act as an independent contractor in performing its obligations under this Agreement. This Agreement will not be interpreted or construed to create an association, joint venture, partnership, or franchise between the parties or to impose any partnership obligation or liability upon a party. The arrangements between the parties set forth in this Agreement are not exclusive and Company may engage in other business activities and provide services (including services of the type provided hereunder) to other persons or entities in its sole discretion.

12.2 Notices; Electronic Delivery. Any notice or other communication under this Agreement will be in writing and will be delivered in person, by facsimile, or mailed, properly addressed and stamped, to the intended recipient at the address appearing on the signature page of this Agreement, and in the case of Broadcaster, with a copy to the attention of the Legal Department of Broadcaster. by facsimile or by electronic transmission of a PDF file shall be as effective as delivery of a manually executed counterpart, and, where signatures of more than one party are required, exchange of signature pages by facsimile or by electronic transmission of PDF files shall be as effective as exchange of manually executed counterparts. Any party may, from time to time, change its address for receiving notices by giving the other parties notice of the change in accordance with this Section.

12.3 Assignment. No party may assign this Agreement or any right or interest in this Agreement without the prior written consent of Company, in the case of a proposed assignment by Broadcaster, or without the prior written consent of Broadcaster, in the case of a proposed assignment by Company, which consent in each case will not be unreasonably withheld or delayed; provided that Company or Broadcaster may assign this Agreement without such approval or consent to any purchaser of all or substantially all of its assets or to any successor by way of merger, stock sale, consolidation or similar transaction. Subject to the foregoing restriction on assignment, this Agreement is binding upon, inures to the benefit of, and is enforceable by the parties and their respective successors and permitted assigns.

12.4 Waiver; Cumulative Rights. No waiver of any term, condition or obligation of this Agreement shall be valid unless in writing and signed by the waiving party. No failure or delay by a party at any time to require another party to perform strictly in accordance with the terms hereof shall preclude that party from requiring performance by such other party at any later time. No waiver of any one or several of the terms, conditions or obligations of this Agreement, and no partial waiver thereof, shall be construed as a waiver of any of the other terms, conditions or obligations of this Agreement. All rights and remedies provided for herein are cumulative and in addition to any and all other rights or remedies available to a party, whether at law, in equity, by contract or otherwise unless otherwise expressly provided for in this Agreement.

12.5 Compliance and Severability. Each party will perform its obligations under this Agreement in accordance with all applicable laws, rules and regulations now or hereafter in effect. If any term or provision of this Agreement will be found to be illegal or unenforceable, the remainder of this Agreement will have full force and effect and such provision will be interpreted, construed or reformed to the extent reasonably required to render the same legal, enforceable and consistent with the original intent underlying such provision.

12.6 Governing Law. This Agreement will be interpreted and enforced in all respects in accordance with the laws of the State of Washington without reference to its choice of law rules.

12.7 Entire Agreement. This Agreement, together with the exhibits that are specifically referenced herein, and the Acknowledgement and Agreement of any Radio Stations and Affiliates, constitute the entire agreement among the parties, and supersedes all prior agreements with regard to the subject matter hereof. No amendment or modification of any provision of this Agreement will be valid unless set forth in a written instrument signed by the parties.

12.8 Broadcaster Tradenames. Broadcaster hereby consents to the use of its tradenames and trademarks to identify them as a client of Company in advertising, promotional and related materials.

12.9 No Third-Party Beneficiaries. Except those indemnitees specified in Section 9, that may be indemnified pursuant to the terms and conditions thereof, this Agreement will not be construed to make any other person or entity, including the Radio Advertiser Users, Radio Users and listeners, third party beneficiaries hereof.

12.10 Force Majeure. No party shall be liable for any acts or omissions resulting from circumstances or causes beyond its reasonable control, including, fire or other casualty, act of God, strike or labor dispute, power or telecommunication interruptions, electronic virus, electronic attack or infiltration, internet disturbance, war, terrorism or other violence, or any governmental action.

12.11 Interpretation. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Words importing the singular include the plural and vice versa. The following words shall be interpreted as designated: (i) “or” connotes any combination of all or any of the items listed; (ii) “includes” or “including” identifies some, but not all, examples relevant to the subject matter and will be interpreted as “including but not limited to” or “includes but is not limited to”; (iii) “specified” or “expressly” requires that an express statement is contained in the relevant document; (iv) the words “hereof”, “herein”, “hereto” and “hereunder” and words of similar import when used in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement; and (v) references to exhibits are to exhibits to this Agreement unless otherwise specified in the relevant reference; all exhibits referenced in this Agreement are incorporated by reference into this Agreement and will be interpreted as an integral part of this Agreement.

12.12 Counterparts. This Agreement may be executed in counterparts, all of which shall be deemed an original, but such counterparts, when taken together, shall constitute one agreement. Consistent with Section 12.2, exchange of signature pages of this Agreement by facsimile or by electronic transmission of PDF files shall constitute execution and delivery of this Agreement by the parties.

12.13 Survival. The provisions of Sections 5.2, 6, 7.4, 8.2, 9, 10 and 11, and any and all other provisions contained in the Agreement that by their nature should survive, shall survive any termination or expiration of this Agreement.

QUU SERVICES PLATFORM IMPLEMENTATION

The Quu Services comprise the following systems, described in detail in the document entitled “Quu – Solution Suite”:

1.0 OVERVIEW.

1.1 Companion Advertising. Every advertiser message scheduled in Quu backend modules tied to a pre-scheduled, recorded, over-the-air commercial in a pre-scheduled break on the Radio Station is considered ‘Companion Advertising.’ Companion Advertising may appear online (within QuuIP – defined below), in the car (RDS and HD text) or on QuuMobile.

1.2 Non-Break Advertising. All advertising campaigns appearing on platforms managed by Quu modules other than Companion Advertising are considered ‘Non-Break Advertising.’ Non-Break Advertising in QuuIP consists of the background skins when music is playing; Non-Break Advertising in RDS/HD consists of radio display text campaigns when music is playing or the DJ is talking; Non-Break Advertising in QuuMobile consists of skin and banner ads.

2.0 BACK-END MODULES.

2.1 Quu2Go A B2B application that allows Radio to upload rich-media content (and other information) and attach this content to their advertising campaign, defined as an “Item.” The application’s Intelligent Campaign Activation System (ICAS) will then activate the uploaded content and render the ad campaign “interactive.” From Quu2Go a Radio User manages Companion ads online (within the Playlist on QuuIP), in the car (RDS and HD) and on mobile (QuuMobile). The application also manages Non-Break advertising campaigns in QuuIP and QuuMobile. Quu2Go is also a B2B application that controls radio text on analog and HD FM including music metadata, Companion and Non-Break advertising campaigns, and station promo campaigns. Campaigns can rotate with time and day of the week. Advertiser campaigns and messages can be rotated on the RDS/HD device during music and jock talk programming and can be scheduled to be date, day of the week and time specific

2.3 QuuMobile API. An application interface that allows stations to upload advertising to their own mobile application using campaign management in Quu2Go

3.0 USER FACING APPLICATIONS.

3.1 QuuIP™. Integrates with the radio station’s website and allows listeners to browse the music and advertising playlist, purchase music, learn more about Quu-enabled ads, interact with advertisers etc.

3.2 RDS/HD Text and Images. In-car display of radio text (and images on Artist Experience ready devices) including music information, station promotional messages, or advertising.

4. Quu NETWORK ADVERTISING.

4.1 Quu Network. Company will develop a network (the “Quu Network”) for purposes of creating a national market for inventory on the Quu Services portions of Radio Station Radio Text Module, QuuIP Module, and QuuMobile API Module. Mostly Quu works with the music industry to display messages related the artist spinning.

4.3 Pre-Emption. As part of the Quu Network, Radio Stations agree to accept Quu Network originated messaging on the Modules for which they’re contracted. Radio Station shall have the right to pre-empt Quu Network advertising upon written notification to Quu if in the Radio Station’s sole discretion the advertising is deemed offensive, obscene, or in violation of applicable law.

4.4 Network Sales. Advertising on the Quu Network may be sold by a Third Party Seller. “Third Party Seller” means any entity not a party to this Agreement, other than Company, which is responsible for originating a valid contract for sale of advertising on the Quu Network.

4.5. Advertiser Category Exclusivity. While Radio Station may elect to sell some or all of its inventory to one local advertiser on an “exclusive” basis, that shall in no way preclude Company from selling a competing product on the Network. For example, if the Radio Station chooses to sell an “exclusive” campaign to a local Ford Truck dealer, Company shall not be precluded from selling a Network campaign to Chevrolet for its truck line. Company will make its best effort to separate competitive campaigns so they do not display back-to-back where possible. Similarly, if Company sells “exclusive” advertising on the Network, the campaign shall in no way preclude Radio Station from selling a local competing product. Company will make its best effort so separate competitive campaigns so they do not display back-to-back where possible.

 

 

TRAINING SERVICES

1. Standard Training. Company shall provide technical training via GoToMeeting for no additional charge. Company and Broadcaster shall agree in writing to a schedule for the standard training sessions.

2. Training Materials. Company shall provide training materials. Broadcaster may use the training materials only in connection with the training provided by Company and may not copy, distribute or otherwise use the training materials without Company’s prior written permission. Broadcaster shall be responsible for all preparations, equipment, facilities, software or other resources, except the Company-provided training materials and personnel, necessary to conduct such training.

3. Additional Training. Company will provide additional training services, over and above the Standard Training provided in Paragraph 1 above, if requested by Broadcaster, according to a time schedule, for an additional fee and at a location to be provided by Broadcaster, as agreed upon in writing between the Company and the Broadcaster. On-Site sales and/or technical training is available for $1,000 per day, including travel days.

4. Costs. Broadcaster shall reimburse the Company for all reasonable, out-of-pocket costs and expenses incurred by Company that have been preapproved in writing by the Company and have been incurred in connection with the Training Services described in paragraphs 1 and 3 of this Exhibit B.

 

 

DEFINED TERMS

“Acknowledgement and Agreement” shall have the meaning assigned in Section 2.2 of the Agreement.

“Ad Enhancing Content” means the images, video, descriptions and other content that is uploaded to the Quu Services platform by the Radio Stations and Radio Advertiser Users.

“Affiliate” means those entities controlled by or under common control with Broadcaster identified on the SERVICES AND LICENSE AGREEMENT, or, if not so identified, that execute an Acknowledgement and Agreement pursuant to Section 2 of the Agreement after the Effective Date.

“Agreement” shall have the meaning set forth in the first paragraph of the Agreement.

“Broadcaster” shall have the meaning set forth in the first paragraph of the Agreement.

“Claim” shall have the meaning assigned in Section 9.1 of the Agreement.

“Company” shall have the meaning set forth in the first paragraph of the Agreement.

“Confidential Information” means any information or material that is disclosed, provided or provided access to by the disclosing party, on the one hand, and the receiving party, on the other hand, which is identified as “confidential” or “proprietary” or which, given the nature of the information or material, or the circumstances surrounding the disclosure, ought reasonably understood to be confidential or proprietary. Notwithstanding the foregoing, the Quu Services and any part thereof including, any related documentation provided by Company, the know-how, methodologies, algorithms, patents, trade secrets and computer software and code contained therein are Confidential Information, whether or not so identified, of the Company.

“Effective Date” shall have the meaning assigned in the first paragraph of this Agreement.

“Indemnified Party” shall have the meaning assigned in Section 9.3 of the Agreement.

“Indemnifying Party” shall have the meaning assigned in Section 9.3 of the Agreement.

“Initial Term” shall have the meaning assigned in Section 7.1 of the Agreement.

“Insolvency Act” means the occurrence of any of the following:

(a) the filing by or against a party of a petition to have such party adjudged as bankrupt or a petition for reorganization or arrangement of such party under any debtor relief law (unless, in the case of a petition filed against such party, the same is stayed, enjoined, discharged or dismissed within 120 days after it is filed);

(b) the making of any general assignment or general arrangement for the benefit of a party’s creditors;

(c) the appointment of a trustee or receiver to take possession of all or substantially all of a party’s assets under any debtor relief law;

(d) the attachment, execution or other judicial seizure of all or substantially all of a party’s assets; or

(e) a party dissolves or liquidates, is dissolved or liquidated, or adopts any plan of dissolution or liquidation.

“Knowledge” means actual knowledge by the Broadcaster’s CEO, CFO, Chief Information Officer, Chief Engineer, General Manager, Vice President of Digital Sales, Quu System Administrator, or any functionally equivalent position, of events or actions taken or threatened to be taken by any person or entity.

“Net Advertising Revenues” shall mean revenues from the sale of advertising on the Quu Network less the sum of (1) any agency commissions due and (2) Company’s reasonable costs, if any, of collecting such revenues including reasonable legal fees and fees paid to collection agencies.

“Payment Default” shall have the meaning assigned in Section 7 of the Agreement.

“Quu Marks” shall have the meaning assigned in Section 3.2 of the Agreement.

“Quu Network” shall have the meaning assigned in Exhibit D.

“Quu Services” shall have the meaning assigned in the third recital clause.

“Quu System Administrator” means the employees of Broadcaster appointed by Broadcaster, in its sole discretion, from time to time, to control access to and use of the Quu Services systems by Radio Advertiser Users and Radio Users.

“Radio Advertiser Users” means a radio advertising client of Broadcaster who is granted access to and use of the Quu Services systems by a Quu System Administrator.

“Radio Advertiser Terms” shall have the meaning assigned in Section 4.5 of the Agreement.

“Radio Stations” means those radio stations identified by frequency and call letters on the SERVICES AND LICENSE AGREEMENT attached hereto, or if not so identified, that execute an Acknowledgement and Agreement pursuant to Section 2 after the Effective Date.

“Radio Users” shall have the meaning assigned in Section 4.6 of the Agreement.

“Radio User Terms” shall have the meaning assigned in Section 4.6 of the Agreement.

“Radio Websites” shall have the meaning assigned in the second recital clause.

“Renewal Term” shall have the meaning assigned in Section 7.1 of the Agreement.

“SERVICES AND LICENSE AGREEMENT” means the agreement signed between the Broadcaster and the Company.

“Term” shall have the meaning assigned in Section 7.1 of the Agreement.

“Third Party Seller” shall have the meaning assigned in Exhibit D.

“Third Party Services” means services, provided by third parties not controlled by or under common control with either the Company or Broadcaster, facilitating or effecting the transfer of data from sources outside the Quu Services platform or systems to the Quu Services platform or systems; for example, text messaging services, which connect listeners to Radio Stations via text messages or other technologies, delivered over listeners’ mobile devices.

“Third Party Services Data Integration” means the electronic transfer or exchange of data in technologically compatible formats between the Third Party Services system(s) and the Quu Services systems.

“Training Services” means the services identified in Exhibit E to train Radio Users in accessing and using the Quu Services platform.

© Quu Inc.