ALL PROMOTERS MUST COMPLY COMPLETELY WITH THESE TOU. FEATURE.FM RESERVES THE RIGHT TO TERMINATE THE REGISTRAION OF ANY PROMOTER THAT VIOLATES ANY OF THE TOU. IF YOU ARE AN INDIVIDUAL, YOU REPRESENT AND WARRANT THAT YOU ARE AT LEAST 18 YEARS OF AGE AS OF THE EFFECTIVE DATE OF THESE TOU.
By submitting an audio, video or text component for inclusion for use through the website or Service, Promoter agrees to be legally bound by these TOU. No conditions other than those set forth herein shall be binding on Feature.FM unless specifically agreed to in writing by Feature.FM. Feature.FM will not be bound by conditions printed or appearing on order blanks or copy instructions submitted by or on behalf of the Promoter. Promoter and its agent(s) (if applicable) are jointly and severally responsible under these TOU. Subject to Feature.FM's right to terminate or cancel registration under the TOU, Feature.FM's only obligation to serve audio, video or text promotions hereunder shall be to serve the audio, video or text promotions of the Promoter described herein, and in no event shall Feature.FM be obligated to serve any audio components for any other Promoter. The TOU will be considered accepted by the Promoter once the audio, video or text component requested in the registration form is submitted into the Services. Under no circumstances shall Feature.FM's liability or obligations exceed those which are expressly set out in the TOU.
- (a) All Promoters are required to pay one-hundred percent (100%) of the cost of the campaign in prior to activation of the registration to use the Services. Feature.FM reserves the right to set and negotiate specific payment terms for each Promoter. All payment will be made via PayPal, credit card, or bank wire transfer. Feature.FM is under no obligation to perform agreed upon services until payment is received. Where payment is made by credit card, Promoter expressly agrees not to charge back any amounts and will instead follow the dispute resolution procedures as specified herein. In the event that Promoter is more than seven (7) days past due on its account, Feature.FM may charge the total amount then due and owing to Promoter’s credit card account.
- (b) In the event of a dispute between Promoter and Feature.FM regarding amounts due, Promoter agrees that Feature.FM’s tracking count shall be applied. Promoter understands and agrees that in no event, and under no circumstances, will data provided by any Feature.FM representative constitute final billing numbers. Only invoices sent directly to Promoter are to be construed as representative of billable amounts. In the event that Feature.FM does not receive written notification of a disputed invoice, with rationale and support therefore specifically set forth therein, within five (5) days from the date of the invoice, such invoice will be deemed valid and payable and may not thereafter be disputed.
- (c) Any late payments will accrue interest equal to one and a half percent (1.5%) per month, or the maximum amount allowable under law, whichever is less, compounded monthly. Feature.FM shall be entitled to recover all reasonable costs of collection (including attorneys’ fees, expenses, and costs) incurred in attempting to collect payment from Promoter.
- (d) Rates are subject to change at any time. Feature.FM reserves the right to hold Promoter and any agent, producer, or other authorized representative of Promoter jointly and severally liable for all amounts owed to Feature.FM.
Using the Services:
Feature.FM.com shall have absolute discretion as to whether or not it approves a particular Promoter the registration to use the Feature.FM Services.
- 1. Feature.FM will not deliver users to sites containing content that is not appropriate for viewing by a general audience.
- Feature.FM reserves the right to refuse service to any new or existing Promoter at any time, in its sole discretion, with or without cause. Feature.FM reserves the right, in its sole discretion and without liability, to reject any audio, video or text component for any reason at any time, with or without notice to the Promoter and regardless of whether such audio, video or text component was previously accepted or published through the Services. Feature.FM will not knowingly accept any audio, video or text component from Promoters that produce or provide “adult” materials, or any other matter which is known or recklessly suspected to offend prevailing community standards anywhere received or displayed. Promoter acknowledges and agrees that any suspected audio, video or text component will be presented with reasonable access restrictions, including, without limitation, age or consent disclaimers, certifications, warnings, or restrictions. Audio, video or text components shall not include scatological or sexual references, or other adult language which may not be appropriate for minors, or depictions or references to gore, violence, cruelty to animals, or other offensive or unnatural acts. Feature.FM does not accept Promoters that engage in, promote, facilitate, or suborn the deliberate, reckless, or negligent violation of any laws, and will not condone or permit any such activity that comes to its knowledge. Feature.FM may in its sole discretion refuse, restrict, or terminate the Campaign, transmission, delivery, or other use of any audio, video or text component that it deems inappropriate, or requires special handling, or limit any use of the Services in connection with same. The registration of a Promoter may be terminated by Feature.FM immediately with or without notice if Promoter fails to disclose, conceals, or misrepresents either itself or the nature of its audio, video or text component, activities, or Campaign orders in any way.
- 2. To insure compliance with these TOU, any Promoters that change their content after approval of the registration MUST notify Feature.FM.com of the changes in writing IMMEDIATELY. Campaigns that use third party serving/tracking for auditing purposes may be subject to alternate or additional controls. Feature.FM is the sole owner of all website, display campaign, and aggregate web user data collected by Feature.FM through the Services or otherwise. Promoter only has access to website and web user data that is collected as part of Promoter's campaign as long as Promoter is in full and strict performance of these TOU. All Campaigns are subject to the Services capacity limitations, which may include, without limitation, software, hardware, Internet traffic and service provider restrictions, bandwidth and other performance metrics, inventory availability, payment terms, credit history, audio, video or text component performance, and market pricing limitations.
- (i) Promoter agrees to confirm the correct function of all audio, video or text components submitted to the Services within twenty-four (24) hours of the Campaign start. If no confirmation is received within this time frame, Feature.FM will assume that audio, video or text component is functioning properly and Promoter agrees to pay for all impressions, clicks, or leads derived from the audio, video or text component as measured by Feature.FM. All problems related to audio, video or text component should be immediately brought to the attention of Feature.FM’s account executive for Promoter. Feature.FM is not liable for errors in position and/or placement of the audio, video or text component, or errors of any kind. Promoter agrees and understands that if Feature.FM is requested to retrieve any audio, video or text component for and on behalf of Promoter, that Feature.FM performs this service solely as a courtesy to Promoter. Promoter shall remain fully responsible for all audio, video or text component delivered for or on behalf of Promoter in such instances, even in the event of any errors by Feature.FM, including retrieving incorrect audio, video or text component.
- (ii) Promoter hereby grants to Feature.FM and its third party publishers using the Services a non-exclusive, limited, worldwide, royalty-free, revocable license to market, display, perform, copy, transmit, distribute, and promote the Campaign(s) in connection with its obligations hereunder.
- (iv) Feature.FM reserves the right to pause any Campaign that does not meet or satisfy Feature.FM’s performance expectations or operational requirements, or that is noncompliant with the Services, or for any other reason. During the pause period, Promoter and Feature.FM will work together to address Feature.FM’s concerns. If during or following the pause period Feature.FM deems, at its sole discretion, that the Campaign will not meet minimum performance expectations or operational requirements, Feature.FM reserves the right to cancel Promoter’s Campaign. For Promoters who pre-paid, Feature.FM will credit Promoter the unused portion of pre-payment (i.e. the total pre-payment less the cost of what has been delivered).
- (v) Feature.FM expressly reserves the right to: (a) terminate the registration to use the Services, refuse any audio, video or text component promotion request, cancel any Campaign, or change any Campaign that does not completely conform to every material detail, instruction, method, and guideline set forth in the registration form; (b) refuse any audio, video or text component that does not arrive forty-eight (48) hours prior to the start date; (c) refuse or cancel the use of any Campaign that it deems, in its reasonable and sole discretion, inappropriate for any reason or no reason; (d) refuse at any time to publish, play or transmit any copy, audio, video or text component, or illustration of any kind for any reason including those that it believes, in its reasonable discretion, are an invasion of privacy, are degrading, libelous, unlawful, profane, obscene, pornographic, tend to ridicule or embarrass, are in bad taste, or which in its reasonable discretion are an infringement on a trademark, trade name, or copyright belonging to others; (e) refuse any audio, video or text component promotion request or cancel any Campaign that is or can be hosted by any directly or indirectly competitive services and/or technologies; (f) refuse or cancel any Campaign which redirects traffic to a website other than the site specifically identified in the registration form; and/or (g) refuse or cancel any Campaign which appears to ask consumers to take advantage of other or additional offers not specifically identified in the registration form. Feature.FM shall have no liability to Promoter for failure to place any Campaign on its Services or any third-party's network.
Promoter's Representations and Warranties:
Promoter represents, warrants, and covenants that:
- (i) Promoter will provide through the Services all audio, video or text components required for marketing its campaign;
- (ii) Promoter is the owner or is licensed to use the entire contents and subject matter contained in its audio, video or text component and collateral information;
- (iii) Promoter is solely responsible for the substantive content of each audio, video or text component, and to the extent that Feature.FM provides assistance in the development of a campaign, such assistance shall be limited to audio, video or text component assistance only. Promoter represents and warrants that Feature.FM is not a party to, and has no liability for, the content and claims in Promoter's audio, video or text component.
- (iv) Promoter is not in violation of any obligation, contract, agreement, or laws, by accepting this TOU, by performing its obligations hereunder, or by authorizing and permitting Feature.FM to perform its services hereunder. Promoter has the unrestricted power and authority to enter into and perform its obligations under the TOU;
- (v) the use, reproduction, distribution, transmission, or display of any audio, video or text component and any materials to which users can link, or any products or services made available to users through the audio, video or text component does not and will not (i) violate any law, statute, ordinance, treaty, order, decree, regulation (including but not limited to false advertising or unfair competition under the law of any jurisdiction), give rise to criminal or civil liability or infringe upon any copyright, patent, trademark, or service mark, trade secret rights, or any other personal, moral, contract, property or privacy right of any third party (collectively “Unlawful Conduct”); (ii) contain or promote viruses, obscene, abusive, violent, bigoted, hate-oriented, cracking, hacking, or warez content (collectively “Offensive Conduct”); or (iii) encourage conduct that would constitute Unlawful Conduct or Offensive Conduct;
Promoter agrees to indemnify and hold Feature.FM, its third party publishers, and their respective affiliates, employees, officers, agents, directors, and representatives, harmless immediately upon first demand of Feature.FM from all allegations, claims, actions, causes of action, lawsuits, damages, liabilities, obligations, costs, and expenses (including, without limitation, reasonable attorneys’ fees) arising out of or related to: (i) Promoter's breach of any representations, warranties, or covenants made in TOU including, without limitation, breach of the License granted hereunder, or (ii) any allegations of or proceedings for libel, defamation, violation of privacy or publicity rights, copyright infringement, or other infringement of any third party right, fraud, false advertising, misrepresentation, product liability, or violation of any law, statute, ordinance, rule, or regulation throughout the world in connection with the use of the Services; (iii) the breach by Promoter of any of the terms and conditions set forth herein; and/or (iv) the audio, video or text component. Promoter further agrees that any compromise or settlement of such disputes will contain a complete, express, and unconditional release of Feature.FM. The provisions of this Section shall survive the termination or expiration of the TOU and/or any registration.
Feature.FM’s Proprietary Rights
Except for the Content submitted by Promoter pursuant to the TOU, and the limited licenses expressly granted herein, Feature.FM expressly reserves all rights, title and interest in and to the Feature.FM Services, any Feature.FM content on the Feature.FM website, and all processing, analytics, and other software and technology used by Feature.FM in the provision of the Feature.FM campaign services (collectively, "Feature.FM Technology"), including, without limitation, any derivatives, improvements, enhancements or extensions of the Feature.FM Technology conceived, reduced to practice, or otherwise developed on or on behalf of Feature.FM, all of which are valuable assets of Feature.FM, and any copyright, patent or trademark or other intellectual property right, or federal or state right, pertaining thereto. All Feature.FM Content and Feature.FM Services are the exclusive property of Feature.FM or the Promoters or their Authorized Agents and are protected by Israeli and international copyright laws. The compilation (meaning the collection, arrangement, and assembly) of all Content on the Feature.FM Services is the exclusive property of Feature.FM and is also protected by Israeli and international copyright laws. The Content of the Feature.FM Services may be used as a resource. Any other use, including the reproduction, modification, distribution, transmission, republication, display, or performance of the Content on the Feature.FM Services is strictly prohibited. Furthermore, you will not, nor will you allow or direct any third party (whether or not for your benefit), to reproduce, modify, create derivative works from, display, perform, publish, distribute, disseminate, broadcast, circulate or use any Content on the Feature.FM Services without the express prior written consent of Feature.FM. Any unauthorized or prohibited use of the Content on the Feature.FM Services may subject you to civil liability, criminal prosecution, or both, under applicable law.
Cancellation & Refund Policy
The Promoter may stop or terminate a campaign at any time by "Pausing" or "Archiving" the campaign in the Feature.fm platform. Upon 48 hours written notice to Feature.FM, Feature.FM shall issue a refund for all impressions that have not been delivered. The Promoter is responsible to pay for all impressions that were served by the Feature.FM Services.
- (a) Feature.FM has proprietary relationships with the publishers that receive license to use the Services. With the exception of reasonably documented, preexisting relationships with direct publishers or networks, during the term of the TOU and for a period of twelve (12) months thereafter, Promoter agrees not to solicit, induce, recruit or encourage, directly or indirectly, any publisher that Promoter knows, or has reason to know, is a publisher using the Feature.FM Services in any manner without the express, written consent of Feature.FM. In the event that Promoter violates this provision, it shall pay Feature.FM an additional commission equal to what the Feature.FM would otherwise have earned had Promoter not violated this subsection (a).
- (b) The parties agree and understand that a material breach of this "Non Solicitation" will cause Feature.FM to suffer irreparable harm and that monetary damages may be inadequate to compensate for such damage. Accordingly, the parties agree that in such event, Feature.FM will, in addition to all other remedies, be entitled to preliminary and permanent injunctive relief without the necessity of showing any actual damage or posting a bond and/or shall be entitled to a decree of specific performance of the terms of the TOU against the Promoter. The foregoing remedy is a material, bargained for basis of the TOU and has been taken into account in each party’s decision to enter into these TOU and accept the registration of the Promoter.
Limitation of Liability
- (a) THE PERFORMANCE OF THE SERVICES PROVIDED BY FEATURE.FM, ITS USE AND THE RESULTS OF SUCH USE ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, FEATURE.FM MAKES NO WARRANTIES (INCLUDING THE IMPLIED WARRANTIES WITH RESPECT TO THE SERVICES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT), GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE EXCEPT AS EXPRESSLY SET FORTH HEREIN. FEATURE.FM DOES NOT WARRANT OR GUARANTEE CONVERSION RATES, PAY-UP RATES, RESPONSE RATES, OR ABILITY TO CONVERT THE RESPONSES INTO SALES. FEATURE.FM DOES NOT WARRANT OR GUARANTEE THE PROFILE OR DEMOGRAPHICS OF A RESPONDENT. ALL ORDERS ARE CONTINGENT UPON FEATURE.FM’S ABILITY TO PROCURE NECESSARY ON-LINE ACCESS AND FEATURE.FM IS NOT RESPONSIBLE FOR DELAYS CAUSED BY ACCIDENT, WAR, ACT OF GOD, EMBARGO, COMPUTER SYSTEM FAILURE, OR ANY OTHER CIRCUMSTANCE BEYOND ITS CONTROL. FEATURE.FM WILL USE DILIGENT EFFORT TO MEET SCHEDULED DELIVERY AND ONLINE DATES, BUT MAKES NO GUARANTEE AND ACCEPTS NO LIABILITY FOR ITS FAILURE TO MEET SAID DATES.
- (b) FEATURE.FM SHALL NOT BE LIABLE FOR ANY PUNITIVE DAMAGES OR INDIRECT OR CONSEQUENTIAL LOSS, DAMAGE, COST, OR EXPENSE OF ANY KIND WHATSOEVER AND HOWSOEVER CAUSED, WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE, STATUTE, OR OTHERWISE, INCLUDING, (WITHOUT LIMITATION) LOSS OF PRODUCTION, LOSS OF OR CORRUPTION TO DATA, LOSS OF PROFITS OR OF CONTRACTS, LOSS OF OPERATION TIME, AND LOSS OF GOODWILL OR ANTICIPATED SAVINGS, EVEN IF ADVISED OF THEIR POSSIBILITY. FEATURE.FM’S TOTAL OBLIGATIONS AND/OR LIABILITY, IF ANY HEREUNDER, SHALL BE LIMITED TO THE AMOUNTS PAID TO IT FOR THE CAMPAIGN IN QUESTION.
- (c) Without derogating from the foregoing, Feature.FM shall not be subject to any liability whatsoever for (1) delays in delivery and/or non-delivery of an audio, video or text component, including, without limitation, difficulties with a customer or other third party, difficulties with a third-party server, or electronic malfunction; and (2) errors in content or omissions of any kind.
Feature.FM reserves the right to change any of these TOU at any time without notice. You are responsible for complying with any changes to the terms and conditions within 10 days of the date of change. A notice with respect to any change will appear on Feature.FM website.
Waiver; Severability; Assignment; Relationship
The waiver by either party of a breach or right under the TOU will not constitute a waiver of any other or subsequent breach or right. If any provision of the TOU is found to be invalid or unenforceable by a court of competent jurisdiction, such provision shall be severed from the remainder of the TOU, which will remain in full force and effect. Promoter may not resell, assign, or transfer any of its rights hereunder (including, without limitation, advertisement or promotion space) without the express prior written consent of Feature.FM. Any attempt by Promoter to resell, assign, or transfer such rights shall result in immediate and automatic termination of the TOU, without liability to Feature.FM. Feature.FM may assign any of its rights and obligations under the TOU to a third party without the Promoter's consent. The relationship of the parties is and at all times shall remain one of independent contractors. Neither party is in any way a partner, joint venturer, affiliate, agent, or representative of the other for any purpose whatsoever, nor does either party have the legal right or authority to make any representation, warranty, promise, guaranty, or agreement in the name of or for the account of the other under the TOU, except as otherwise expressly authorized by a party under the TOU. Entire Agreement These TOU set forth the entire agreement between the parties and supersede any prior proposal, agreement or representation between the parties, written or oral, regarding the subject matter contained herein. Governing law The TOU shall be governed by and construed under the laws of the state of Israel without regard to conflict of laws principles.