Subscriber's use of the Service requires the following items to be provided by Subscriber: (a) a Mood account for the Service; (b) an account with iHeartMedia + Entertainment, Inc. ("iHeartRadio"); (c) a computer or mobile device with web browsing capabilities by which to activate Subscriber's Media Player and/or manage Subscriber's iHeartRadio account; (d) a Media Player (purchased from Mood); (e) wired Broadband Internet access; and (f) a sound system including one or more amplifiers with a RCA input.
In the event of Subscriber's default, Mood shall have the right, but shall not be obligated, to discontinue its Service and declare an early termination of this Agreement by mailing a termination notice, by first class mail, notwithstanding any provision to the contrary in this Agreement, to Subscriber at Subscriber's address on the books of Mood. Subscriber shall be in default upon modifying in any way or obtaining unauthorized access to the Service; or failure to make any payment due hereunder; or Subscriber's breach of any covenant herein; or in the event of any bankruptcy, arrangement or insolvency proceeding being commenced by or against the Subscriber; or in the event of any assignment for the benefit of creditors or appointment of a receiver for the Subscriber or its properties.
Subscriber understands the Monthly Service Charge ("MSC") is based upon the Agreement running for its full term of years and each renewal period thereafter until terminated in accordance with the terms of this Agreement; and it is Subscriber's intent not to terminate this Agreement except as provided by this Agreement. Therefore, in the event of any early termination of the Agreement the parties agree damages to Mood resulting from such termination are not now and will not then be readily determinable. Subscriber therefore agrees to immediately pay to Mood as liquidated damages and not as a penalty upon early termination of this Agreement all payments then due, plus eighty-five percent (85%) of all payments to become due to the expiration of the then current term of the Agreement and Mood's hourly labor rate in effect at the time to disconnect the Service, which sums Subscriber agrees are both necessary and reasonable. In the event of any modification to the above liquidated damages provision regarding payments for the unexpired term, such modification shall not be construed to prevent Mood from collecting its common law damages for the unexpired term, in addition to any other remedies it may have pursuant to this Agreement or in law or equity.
If any payment should be unpaid for more than ten (10) days after the due date thereof ("Delinquent Payment"), Subscriber agrees to pay (a) a late payment fee of the greater of twenty-five dollars ($25) or five percent (5%) of the Delinquent Payment amount, (b) an interest charge of the lesser of one and one-half percent (1½%) per month, compounded monthly, or the highest contract rate allowed by law, of the Delinquent Payment per month for every month after the first month which the sum remains unpaid, and, if applicable, (c) a return check or ACH charge rejection for non-sufficient funds charge of $25.00 or actual bank charges whichever are greater. Subscriber agrees to pay all costs of collection, before and after judgment, including, but not limited to, court costs, interest, and reasonable attorney fees (including those incurred in defense of any claim brought by Subscriber or incident to settlement or any action or proceeding involving Subscriber brought pursuant to the United States Bankruptcy Code). In addition, Mood shall be entitled to full payment, at its full replacement cost, for any of its Rented Equipment not immediately returned to Mood in the same condition as when loaned to Subscriber, ordinary wear and tear excepted. Mood may charge additional fees to integrate into Subscriber's electronic billing system.
So long as the term in Section 1 is five (5) years or longer, Mood agrees not to increase its MSC for at least two years from the date of this Agreement, exclusive of increased taxes and licensing fees. Otherwise, Mood may increase the then current MSC as it deems necessary; however, such increase shall not exceed ten percent (10%) annually, exclusive of increased taxes and licensing fees.
Subscriber agrees to remit all charges on or before the first day of each month in advance to the offices of Mood at P.O. Box 660557, Dallas, Texas 75266-0557 or such other address as required by Mood from time to time.
Subscriber is solely responsible for using Subscriber's iHeartRadio account to select music for Subscriber's business and ensuring that the music is appropriate for the needs and sensitivities of Subscriber's business. Mood has activated iHeartRadio's explicit content feature by default; however, Subscriber may change the default settings. Subscriber is responsible for and will hold Mood and iHeartRadio harmless for explicit lyrics, topics, themes and innuendo included within the Service that may be objectionable to Subscriber, Subscriber's employees or Subscriber's clientele.
Subscriber agrees that the Service, including but not limited to music and graphics, contains proprietary information and material that is owned by Mood, iHeartRadio, their partners and/or licensors, and that is protected by applicable intellectual property and other laws, including but not limited to copyright laws, and that Subscriber will not use such proprietary information or materials in any way whatsoever except for use of the Service in compliance with the terms of this Agreement. Subscriber shall not sell, assign, give away, pledge, reproduce, copy, record, dub, duplicate, alter, edit, modify or damage in any manner the Service unless agreed to in writing by Mood. Subscriber shall not transmit or use the Service outside of Subscriber's Location. Subscriber agrees not to exploit the Service in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity.
Mood shall pay copyright license fees (as applicable) for Subscriber's use of the Service as authorized herein. Subscriber shall not use the Service for dancing (including but not limited to ballrooms, discotheques and dance studios), bowling, skating, aerobic or other similar forms of entertainment or physical activity (including but not limited to instructed health club classes) or where an admission or cover charge is charged (including but not limited to nightclubs and theme parks). Subscriber agrees not to use the Service for such purposes without prior consent of Mood. The Service does not cover Music On Hold use.
Mood grants Subscriber a non-exclusive, non-transferable, non-assignable, limited license to use the Software solely in connection with the Service during the Term of this Agreement. "Software" means Mood's software provided on or in connection with the Media Player, together with all codes, techniques, software tools, format, design, concepts, methods, and ideas associated therewith for the specific purpose of receiving and/or playing the Service. Subscriber agrees that it will not (or allow others to) reverse engineer, dissemble, decompile or otherwise reduce the Software to human-perceivable form or copy, modify, sublicense, or distribute the Software.
Mood and other Mood trademarks, service marks, graphics, and logos used in connection with the Service are trademarks or registered trademarks of Mood in the U.S. and/or other countries. iHeartRadio and other iHeartRadio trademarks, service marks, graphics, and logos used in connection with the Service are trademarks or registered trademarks of iHeartRadio in the U.S. and/or other countries. Other trademarks, service marks, graphics, and logos used in connection with the Service may be the trademarks of their respective owners. Subscriber is granted no right or license with respect to any of the aforesaid trademarks and any use of such trademarks.
THE USE OF ANY PART OF THE SERVICE, EXCEPT FOR USE OF THE SERVICE AS PERMITTED IN THIS AGREEMENT, IS STRICTLY PROHIBITED AND INFRINGES ON THE INTELLECTUAL PROPERTY RIGHTS OF MOOD AND/OR OTHERS AND MAY SUBJECT SUBSCRIBER TO CIVIL AND CRIMINAL PENALTIES, INCLUDING POSSIBLE MONETARY DAMAGES, FOR COPYRIGHT INFRINGEMENT.
Internet access is not included as part of the Service, and third party fees may apply. Because use of the Service involves software and Internet access, Subscriber's ability to use the Service may be affected by the performance of Subscriber's Broadband service. Mood is not responsible for service interruptions caused by disruptions of Subscriber's Broadband service.
Mood reserves the right to modify, suspend, or discontinue the Service at any time upon thirty (30) days' notice to Subscriber, and Mood will not be liable to Subscriber or to any third party should it exercise such rights.
Subscriber agrees that Mood has the right, without liability to Subscriber, to disclose any information to law enforcement authorities, government officials, and/or a third party, including iHeartRadio, as Mood believes is reasonably necessary or appropriate to enforce and/or verify compliance with any part of this Agreement.
The Service is available only in the United States (the "Territory"). Subscriber agrees not to use or to attempt to use the Service outside the Territory.
In the event of Mood's inability to perform any of its obligations to this Agreement due to strike, civil commotion, fire, flood, mechanical failures, satellite failures, war, acts of God or Public Authority, or other causes beyond its control, Mood shall be excused from its performance thereof for the duration and a reasonable time thereafter.
SUBSCRIBER AGREES TO INDEMNIFY AND HOLD MOOD AND IHEARTRADIO, AND THEIR DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, AND LICENSORS, HARMLESS WITH RESPECT TO ANY CLAIMS ARISING OUT OF DAMAGE OR INJURY TO ANY PERSONS OR PROPERTY ARISING OUT OF OR BY REASON OF THE INSTALLATION OF THE MEDIA PLAYER OR MAINTENANCE THEREOF, SUBSCRIBER'S BREACH OF THIS AGREEMENT, SUBSCRIBER'S USE OF THE SERVICE, OR ANY ACTION TAKEN BY MOOD AS PART OF ITS INVESTIGATION OF A SUSPECTED VIOLATION OF THIS AGREEMENT, OR AS A RESULT OF ITS FINDING OR DECISION THAT A VIOLATION OF THIS AGREEMENT HAS OCCURRED.
In no event shall Mood or iHeartRadio be liable for incidental, consequential or special damages arising out of or relating to this Agreement. The aggregate liability of Mood and iHeartRadio hereunder shall be limited to the total amount of sums paid to Mood by Subscriber hereunder.
All representations, negotiations, conversations, promises or warranties, expressed or implied, including implied warranties of merchantability and fitness for a particular purpose are replaced by this agreement which constitutes the entire Agreement between MOOD and the Subscriber and shall supersede and replace all prior Agreements for Service at the location(s) covered by this Agreement. NEITHER MOOD NOR IHEARTRADIO REPRESENTS OR GUARANTEES THAT THE SERVICE WILL BE FREE FROM LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, AND MOOD AND IHEARTRADIO DISCLAIM ANY LIABILITY RELATING THERETO. During any term of this Agreement, Mood and/or iHeartRadio may use Subscriber's name and/or logo to identify Subscriber as a customer of Mood or iHeartRadio. This Agreement may not be assigned by Subscriber without the written consent of Mood; however this Agreement is fully assignable by Mood. Subject to the foregoing regarding assignment, this Agreement shall inure to the benefit of and be binding upon the heirs, executors, administrators, successors, purchasers and assigns of Subscriber. Any failure by Mood to enforce any of the provisions of this Agreement shall not be deemed a waiver of its rights to require strict performance of such provisions in the future. No provision(s) of a Purchase Order(s) or other document(s) from Subscriber shall alter the terms and conditions of this Agreement hereto and in the event of a conflict, this Agreement shall prevail. This Agreement or Subscriber Purchase Orders or other documents from Subscriber shall not be binding upon Mood until countersigned by an authorized officer/agent of Mood.
The person executing this Agreement on behalf of Subscriber, by such execution, warrants and represents he/she has the authority to execute this Agreement on behalf of Subscriber and Subscriber intends to be bound by this Agreement.
This Agreement is made in the State of Texas. Any controversy, claim or dispute arising out of or relating to this Agreement, or the breach thereof, shall be settled solely and exclusively by binding arbitration in Austin, Texas, according to the laws of the State of Texas, without regard to conflict of laws, and the arbitrator's judgment on the law of the jurisdiction shall be final and binding. Such arbitration shall be conducted by the American Arbitration Association under its then prevailing Commercial Arbitration Rules. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. In the event a party fails to proceed with arbitration, unsuccessfully challenges the arbitrator's award, or fails to comply with arbitrator's award, the other party is entitled of costs of suit including a reasonable attorney's fee for having to compel arbitration or defend or enforce the award.