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Terms & Conditions

Terms & ConditionsBaracoda and the Content Owner being hereafter collectively referred to as the "Parties" and individually as a "Party". RECITALS Baracoda is the creator of a database (hereafter the "Database") referencing services accessible on the Internet. This database is accessed in particular from an apparatus which enables its users to connect to the contents of the services referenced in the Database. The Content Owner broadcasts an online radio & podcast services accessible from the URL indicated in Schedule A&B (hereafter the "Service"). The present referencing contract (hereafter the "Contract") is intended to reference the Service within the Database, thereby enabling Database users to access the contents proposed by the Service. The Parties have agreed to work together according to the terms of the present Contract. IT HAS BEEN AGREED AS FOLLOWS: ARTICLE 1- PURPOSE The purpose of the present Contract is to define the terms and conditions under which Baracoda shall reference the Content Owner's Service within the Database, in order to operate it under its own name and/or for and on behalf of a third party. ARTICLE 2- OBLIGATIONS 2.1 THE CONTENT OWNER'S OBLIGATIONS The Content Owner authorises Baracoda to reference the Service within the Database, in order for it to be accessible for Database users. The Content Owner undertakes to inform Baracoda prior to any foreseeable modification of the URL(s) from which the service(s) making up the Service as defined under the Contract are accessible. The Content Owner undertakes to ensure minimum operating conditions for the Service it broadcasts, and in particular to ensure that there are no repeated interruptions to the programmes broadcast within the Service. The Content Owner undertakes to provide the metadata related to the music broadcasted in its Service, i.e. at least the name of the artist and the title of the record. The Content Owner authorises a pre-listen to its Service for a maximum duration of thirty seconds from an Internet site. 2.2 BARACODA'S OBLIGATIONS Baracoda undertakes to reference the Service within the Database enabling the Database users to access the contents of the Service. Baracoda undertakes to study any new service that the Content Owner may develop following execution of the Contract which could be included in the Service for the purposes of the Contract. Baracoda undertakes to regularly communicate to the Content Owner globalised data in respect of the number of user connections to the Service. The frequency, format and contents of the data thereby communicated are freely defined by Baracoda after having informed the Content Owner. In this respect, the Content Owner accepts that Baracoda may collect data related to the persons using the Service, it being specified that this data will remain solely the property of Baracoda, and that the Content Owner may not sell, transfer or otherwise make over such data without the prior written authorisation of Baracoda. Baracoda warrants that it collects, processes and transfers the said data in compliance with the provisions of the French Data Protection law (loi Informatique et Libertés) of 6 January 1978, as modified by the law of 6 August 2004, and, in particular, that it has obtained all the necessary authorisations required in order to transfer personal data to the Content Owner. Baracoda reserves the right, as accepted by the Content Owner, to apply advertising messages to the broadcasting of contents of the Service to users of the Database. ARTICLE 3- LIABILITY The Content Owner is solely liable for the editorial content of its Service. The Content Owner therefore releases Baracoda from any liability in respect of the contents, stored data and/or data broadcast via the Service. The Content Owner undertakes to hold Baracoda harmless against any claim of this nature. The Content Owner warrants that the Service shall not in any way infringe the rights of third parties, and in particular that it has obtained all necessary prior authorisations in respect of the operation of its Service, as well as in respect of the execution of the present Contract enabling it to be fully and correctly performed. In the event that the Content Owner should breach any of its obligations under the present Contract, or any legal provision in force, Baracoda reserves the right to suspend the referencing ipso jure, until such time as the Content Owner ensures compliance of its Service with the said legal or contractual provisions. The Content Owner must notify Baracoda in writing of the fact that it has again ensured that it complies with the aforementioned provisions. Baracoda cannot in any way be held liable for the quality of the Service accessible by users on the basis that it does not intervene in the communication of the Service to users. ARTICLE 4- NOTIFICATION / INFORMATION All notifications, affidavits, claims, applications, formal notice and other communication taking place in the framework of the Contract between the Parties will be sent in writing to the addresses provided at the top of the present Contract or to the email addresses of the Parties as provided below: For Baracoda: radio@baracoda.com For the Content Owner: Legal contact / Email (as given in page 1) The Parties undertake to inform each other as soon as possible and in line with the aforementioned terms of any event which could have any possible affect on the performance of the present Contract. ARTICLE 5- DURATION AND GEOGRAPHICAL SCOPE The present Contract will enter into force as of the date of its execution for a period of 30 (thirty) months. The Contract may then be renewed for successive 12 (twelve) month periods unless it is terminated by one or other of the Parties by registered letter with proof of receipt sent two weeks prior to the end of the present contractual term, or the end of any subsequent contractual period. The Contract applies in all territories from which the Database is accessible. ARTICLE 6- TERMINATION 6.1 TERMINATION IN THE EVENT OF BREACH In the event that one of the Parties fails to perform one of its obligations as provided under the Contract, the Contract shall be terminated ipso jure 15 (fifteen) days after notification by the other Party of a formal notice to rectify this breach, where no action has been taken on this formal notice and the breach remains unresolved. In the event that the Contract is terminated on the basis of the preceding paragraph, the Party which terminates the Contract will have the option to request that the Party in breach provides compensation for the prejudice suffered as a result of this breach. 2. Force majeure In the event that a force majeure event arises, as defined by the French courts, the Party suffering this event may suspend the performance of its obligations subject to it having informed the other Party as soon as the force majeure event arises, indicating the predicted duration of the effects of the force majeure event and having taken all available steps to limit the effects of the event. The corresponding obligations of the other Party shall also be suspended. Should the effects of the force majeure event continue for a period of more than 15 (fifteen) days and/or in the event that the effects of the event and their duration irreparably compromise the continued performance of the Contract, the other Party may terminate the Contract ipso jure subject to notification and a period of 10 (ten) days notice. ARTICLE 7- CONFIDENTIALITY Each Party shall retain as confidential all written and oral information of any sort in respect of the other Party which may have been disclosed to it by the other Party, or that it may have had knowledge during the performance of the Contract (hereafter the "Confidential Information"). The Parties undertake to take all necessary measures in respect of their personnel and the persons working on their behalf in order to ensure that these persons handle the Confidential Information in line with the provisions of the present article, and undertake to ensure that the present confidentiality obligation is respected by these persons. The Parties' obligations under the present contract shall apply for the entire duration of the Contract, and for a period of 5 (five) years following its termination for any reason. ARTICLE 8- INTELLECTUAL PROPERTY RIGHTS The Contract grants no rights to the Content Owner over all or part of the elements of the Database. For the duration of the Contract, the Parties may refer to the partnership between them as well as use the distinctive signs belonging to both of the Parties, on any media, solely for the performance of the Contract, including for information, promotion and operation of the Service and the Database. ARTICLE 9- TRANSFER The present Contract may not be transferred, assigned or otherwise made over either directly or indirectly, totally or partially, for free or for consideration by Baracoda, to any person or entity for any reason, without the written authorisation of the Content Owner. However, Baracoda may transfer the present Contract without the Content Owner's authorisation in the following cases: * Transfer of Baracoda's rights and obligations to any company of its group, or * Transfer of Baracoda's rights and obligations to a company to which its business is contributed in the framework of a partial contribution of assets, a merger or a demerger. ARTICLE 10- GOOD FAITH COOPERATION The Parties acknowledge that the correct performance of the obligations created by the Contract depends essentially on their mutual good faith cooperation. Each of the Parties therefore undertakes, under all circumstances, to cooperate in the most efficient way possible with the other Party, and in particular in respect of any difficulty in the performance of the present Contract, in order to look in good faith for solutions which would comply with the Parties reciprocal interests. ARTICLE 11- APPLICABLE LAW – JURISDICTION The Contract is governed by French law. All disputes which may arise between the Parties, in particular in respect of the validity, the interpretation, the performance or the termination of the present Contract will be submitted to the jurisdiction of the Paris courts.
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