This service agreement (“Agreement) is between you, the entity agreeing to this Agreement (“Publisher“); and us, namely RADIO NET MEDIA LIMITED, a company registered in England with company registration number 10483422 and whose registered office is at 71-75 Shelton Street, Covent Garden, London, WC2H 9JQ (“RNM“).
This Agreement is effective as of the date on which the Publisher accept it and registers for a Publisher Account (“Effective Date”). This Agreement governs the Publisher’s access to and use of the advertising radio streams and data analytics services provided by RNM.
If you are accepting this Agreement on behalf of the Publisher, you represent and warrant that you: (i) have full legal authority to bind the Publisher to this Agreement; (ii) have read and understood this Agreement; and (iii) agree to this Agreement on behalf of the Publisher. If you do not have the legal authority to bind the Publisher, please do not accept this Agreement.
- Publisher owns or has the right to operate specific online radio stations (details of which the Publisher has provided at the time of setting up the Publisher Account (as defined below) or any other affiliated subsidiary stations (together the “Radio Streams”) to live broadcast online radio streams (“ORS”).
- RNM owns or has the right or license to operate a software (working and operating under and in accordance with AdTonos.com) (“RNM Software“) and certain related know-how concerning dynamic advertising during ORSs and the use of big data to enhance the effectiveness of that advertising by (if RNM Software considers this fit) replacing the original advertising blocks during ORSs with in organized and self-selected playouts.
- Publisher wishes to receive a share of RNM’s revenues from the operation of the RSM’s Software on the Publisher’s Radio Streams and RNM has agreed to provide the Publisher with a share of such revenues on the terms set out in this agreement.
- Publisher will make its Radio Streams available to RNM and enable RNM to integrate the RNM Software with the Radio Streams for its operations during ORSs.
- RNM will write any reasonably necessary code to enable the integration of the RNM Software with the Radio Streams and RNM will retain the ownership of that code.
- Publisher agrees to remain solely responsible and liable for any Content as for unsolicited advertising outside of advertisement blocks and general content streamed during ORSs on the Radio Streams which will be played outside and without the use of the RNM Software (effectively anything other than the Playouts).
- Publisher and RNM wish to enter into an arrangement for the sharing of revenue
related to advertising of Playouts during ORSs on any of the Publisher’s Radio Streams in accordance with the terms of this Agreement.
- The definitions and rules of interpretation in this clause 1 shall apply in this agreement.
Applicable Laws: means all applicable laws, regulations and regulatory requirements of England and Wales, as amended and in force from time to time, relating specifically to the performance of the parties’ respective obligations under this Agreement.
Confidential Information: includes all written, electronic or oral information relating to the business or assets of each party and its customers, clients and suppliers, and the commercial terms of this Agreement.
Data Protection Legislation: means, up to but excluding 25 May 2018, the Data Protection Act 1998 and thereafter (i) unless and until the GDPR is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 1998.
End User: means a customer of RNM who is an end user (also referred to as an “Advertiser”) of the Radio Streams.
GDPR: General Data Protection Regulation – (EU) 2016/679).
Intellectual Property Rights: means all copyright and rights in the nature of copyright, design rights, patents, trademarks, database rights, rights to inventions, business names, applications for any of the above, goodwill and the right to sue for passing off, moral rights, rights to use, rights in confidential information, know-how and trade secrets, domain names and any other intellectual or industrial property rights whether or not registered or capable of registration, including all applications and rights to apply for and be granted, renewals or extensions of, and right to claim priority from, such rights and all similar or equivalent rights or forms of protection whether subsisting now or in the future in the United Kingdom or any other part of the world.
Playout: each and every one advertisement played to each and every one Radio Streams’ listener during ORSs on behalf of an End User.
Publisher Account: means the Publisher’s online publisher account, accessible at [https://app.adtonos.com].
Publisher Deliverables: means the information the Publisher undertakes to provide RNM upon the acceptance of this Agreement, as explained in more detail at clauses 3.2 and 3.3.
Publisher Materials: means the software which operates the Radio Streams and all other Intellectual Property Rights in any other materials which are owned by the Publisher at the date of this Agreement.
Revenue: net income (excluding VAT) paid or credited to RNM’s account from all activities relating to the exploitation of the RNM Software using Publisher’s Radio Streams after deduction of all bona fide third party costs, expenses and VAT, such third party costs, expenses and VAT which have been approved by the Publisher in advance, and which are shown on the invoices delivered to the End User by RNM in connection with such activities, unless otherwise agreed between the parties in writing.
RNM Materials: means the RNM’s Software and any software created by RNM to allow the RNM Software to integrate with the controlling software of the Radio Streams in relation to the Playouts during the ORSs and all Intellectual Property Rights in any other materials which are owned by RNM at the date of this Agreement.
RNM Price List: means the RNM’s price list (as amended from time to time), as set out in [https://www.adtonos.com/publisher/pricing].
- Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
- In this Agreement, headings are for convenience only and shall not affect the interpretation of this Agreement.
- Unless earlier terminated in accordance with Clause 12, the term of this agreement shall be a period commencing on the date of this Agreement until it has been terminated in accordance with clause 12 (“Term“).
- USE OF THE RADIO STREAMS
- In consideration of entering into this Agreement, the parties agree to comply with their respective obligations as set out at Clause 8 of this Agreement.
- Following the Publisher’s acceptance of this Agreement, and following RNM’s agreement to allow the Publisher’s Account to be created, the Publisher shall provide RNM with:
- stream(s) links to the Radio Streams;
- break indicator files (intro and outro);
- if applicable, the Publisher’s national VAT number;
- any other information (including, if necessary, Publisher Materials) which RNM may reasonably require in order to integrate the RNM Software with the Radio Streams to allow RNM to effect Playouts.
- Publisher shall provide RNM with access to up-to-date availability information relating to the Radio Streams through the Publisher’s Account. RNM shall he entitled to book advertising space on the available Radio Streams during ORSs on behalf of End Users.
- Revenue from RNM’s advertising during ORSs will be generated by reference to:
- the number of valid Playouts streamed during RNM’s ORSs;
- the number of valid impressions of advertisements displayed on the Radio Streams during Playouts, and/or
- other valid advertising event performed in connection with the RNM’s Playouts for the particular Publisher.
- Publisher’s Revenue will appear on the Publisher’s Dashboard in accordance with the terms of this Agreement.
- Invalid activity for which the Revenue will not be generated includes:
- spam, invalid queries, invalid impressions or invalid clicks on advertisements generated by any person, bot, automated programme or similar device, including through any clicks or impressions ;
- clicks solicited or impressions generated by payment of money, false representation or requests for end users to click advertisements or take other actions;
- clicks or impressions co-mingled with a significant amount of the activity described in a), b) and c) above.
- RNM shall pay (subject to any deductions reflecting any amounts which for any reason RNM may be required to refund or credit to End Users) the Publisher its share of the Revenue as set out at Clauses 4.2(b) arising in each calendar month during the Term (each a “Revenue Payment“). All Revenue Payments shall be based on RNM’s own accounting and internal real time reporting.
- At the end of each calendar month RNM will also generate (in the Publisher’s name) and provide the Publisher with an invoice for the Publisher’s share of the Revenue as set out in clauses 4.2(b) (“Revenue Invoice”).
- RNM shall pay the amount due under each Revenue Invoice within ninety (90) days (“Payment Date”) following the Revenue Invoice being generated for a particular month.
- The Publisher shall be responsible for the payment of all taxes on any payments (including but not limited to the Revenue Payments) from RNM, in accordance with the Publisher local laws and regulations.
- If, for any reason, there is a positive balance on the Publisher’s Account in addition to the Revenue Payment which is due to the Publisher as set out in in clauses 5.1 and 5.3, the Publisher has the right to request RNM to transfer it to the Publisher once a month without any incurring any additional charges (subject to any such request being at least £100 or its equivalent if the Publisher has elected a different currency). Any additional request will result in an administrative charge as set out in RNM’s Price List.
- WARRANTIES AND INDEMNITIES
- Each party warrants to the other that:
- it has the power and authority to enter into and perform the terms of this Agreement, which constitutes valid and binding obligations on it in accordance with its terms;
- it will, in the performance of this Agreement, comply with all Applicable Laws;
- it will not promote, facilities or otherwise include any material that otherwise infringes or is alleged to infringe upon or violate the rights of any third party.
- Each party represents and warrants to the other party that:
- Neither the RNM Materials nor the Publisher Materials (as appropriate) will introduce any program which contains malicious code or infiltrates or damages the RNM Materials or the Publisher Materials (as appropriate) or introduce anything which is designed to do so or which is hostile, intrusive or annoying to RNM or the Publisher (as appropriate) or any other user of the RNM Materials or the Publisher Materials (as appropriate) and has no legitimate purpose; and
- the RNM Materials and the Publisher Materials (as appropriate) will operate as intended by this Agreement and will not interfere with, or otherwise adversely affect the operation of the Publisher Materials or the RNM Materials (as appropriate).
- The Publisher warrants to RNM that, for all other content streamed outside and without the use of the RNM’s Software during the ORSs, the Publisher shall:
- remain wholly and solely liable in case of any claim made by such advertisements displayed during ORSs against RNM;
- actively defend RNM against and during any such claim; and
- indemnify RNM against all costs, expenses, damages and liability whatsoever (including legal costs and awards ordered against RNM).
- DATA PROTECTION
- Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 7, is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation..
- The parties acknowledge that for the purposes of the Data Protection Legislation, both the Publisher and RNM are data controllers and the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation.
- Without prejudice to the generality of clause 1, both RNM and the Publisher will ensure that they have all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data between the parties for the duration and purposes of this agreement.
- PARTIES’ OBLIGATIONS AND RIGHTS
- Publisher shall be obliged to:
- use its best endeavours to maintain high and attractive level of the Radio Streams’ content in order to promote, develop and increase online traffic on the Radio Streams;
- provide access to the Radio Streams that are mutually agreed for the benefit of this Agreement through the RNM’s Software;
- not use RNM’s Software or the Publisher’s Account otherwise than in accordance with this Agreement;
- provide and maintain accurate contact and payment information on the Publisher’s Account;
- maintain efficient communication with RNM;
- alert RNM of any technical issues on its Radio Streams or in relation to the ORSs;
- notify RNM of its plans to make changes, updates and/or close down the Radio Streams with at least 1 months’ prior written notice;
- provide RNM with Publisher’s standard audience data for each advertising campaign; and
- accept playout rates (including base rate and the cost per play (CPP rate) (“Playout Rates”) as agreed by RNM with End Users;
- not be permitted to alter, modify and/or expand the Playouts streamed on the Radio Streams by RNM Software;
- not be entitled to information or data other than those appearing on the Publisher’s Account;
- pay RNM stream maintenance charges in accordance with RNM’s Price List if the sum calculated by reference to the following formulas is less than 120,000:
A x B
A – the number of Playouts in a calendar month for each and every single radio station of the Publisher;
B – the number of the Radio Streams’ listeners in that calendar month for each and every single radio station of the Publisher;
- RNM shall be obliged to:
- upon the Publisher’s acceptance of this Agreement, carry out its own checks and surveys in respect of the Publisher;
- subject to those checks being successful, set up the Publisher Account on RNM’s Software platform for administrative, legal, financial and revenue collecting purposes of the Publisher;
- agree Playout Rates with End Users;
- provide maintenance and upgrades to the software contained within the RNM Software platform, enabling potential advertisers to be able to access the Publisher’s Radio Streams at all times;
- provide access to the RNM’s Software and RNM’s Software platform to all the End Users;
- alert the Publisher and End Users of any agreed changes in RNM’s Price List; and
- write any reasonably necessary code to enable the integration of the RNM’s Platform with the Publisher’s software, for the avoidance of doubt RNM shall retain all Intellectual Property Rights in such code.
- RNM shall have the right to:
- refuse or limit the Publisher’s access to RNM Software;
- refuse to set up the Publisher’s Account;
- change and update the terms of this Agreement with a prior 30 days’ notice. If the Publisher continues to use the RSM’s Software platform after the expiry of this period, the Publisher will be deemed to have accepted the changes to this Agreement;
- change and update the Playout Rates within RNM Software with a prior 30 days’. Notice. If the Publisher continues to use the RSM’s Software platform after the expiry of this period, the Publisher will be deemed to have accepted the changes to this Agreement;
- on Termination, close down the Publisher Account;
- INTELLECTUAL PROPERTY
- RNM hereby grants the Publisher during the Term a non-exclusive, non-transferrable licence to use the RNM Materials solely to allow the Publisher to run the Radio Streams for
the benefit of the End Users in accordance with this Agreement. The Publisher agrees that nothing in this Agreement shall give the Publisher any right, title or interest in the RNM Materials other than the right to use the same in accordance with this Agreement.
- Publisher hereby grants RNM during the Term a non-exclusive, non-transferrable licence to use the Publisher Materials solely to allow RNM to access the Radio Streams in accordance with this Agreement. RNM agrees that nothing in this Agreement shall give RNM any right, title or interest in the Publisher Materials other than the right to use the same in accordance with this Agreement.
- The parties acknowledge that all Intellectual Property Rights in the Publisher Materials belong and shall belong to the Publisher and that all Intellectual Property Rights in the RNM Materials belong and shall belong to RNM, and that neither party shall have any rights in or to the Publisher Materials or the RNM Materials (as the case may be) other than the right to use it in accordance with the terms of this Agreement.
- RNM represents and warrants that:
- it has secured all necessary rights, permissions and releases (and paid all sums due to third parties in respect of the same) necessary for the Publisher to use the RNM Material (as applicable) in accordance with this Agreement; and
- the RNM Material or any pre-existing material included within the RNM Material, or the exploitation by either the Publisher or RNM of the RNM Material pursuant to the terms of this Agreement does not arid will not infringe any rights of any third party.
- Publisher represents and warrants that:
- the Publisher Material is its original work and has not been copied wholly or substantially from any other work or material or any other source;
- it has secured all necessary rights, permissions and releases (and paid all sums due to third parties in respect of the same) necessary for RNM to use the Publisher Material (as applicable) in accordance with this Agreement;
- the Customer Material or any pre-existing material included within the Publisher Material, or the exploitation by either the Publisher or RNM of the Publisher Material pursuant to the terms of this Agreement does not and will not infringe any rights of any third party; and
- Publisher is the sole legal and beneficial owner of the Publisher Material.
- RNM warrants and undertakes to do or procure to be done all further acts or things and execute or procure the execution of documents as the Publisher may reasonably require in order to give effect to the Publisher’s rights under clause 9.1.
- Publisher warrants and undertakes to do or procure to be done all further acts or things and execute or procure the execution of documents as RNM may reasonably require in order to give effect to RNM’s rights under clause 9.2.
- Publisher shall in respect of the Publisher Material and RNM shall in respect of the RNM Material, indemnify and hold harmless the other party against all losses, liabilities and costs (including legal expenses) sustained, incurred or suffered by the other party as a result of any claim, action or proceeding that the use, possession or receipt by the other party of the RNM Material or the Publisher Material (as applicable) (an “Infringing Item“) infringes the Intellectual Property Rights or other rights of any third party (an “IPR Claim“).
- If any person makes an IPR Claim, or in either party’s reasonable opinion an IPR Claim is likely to be made, then the indemnifying party shall, with minimal disruption to indemnified party, at its option (acting reasonably), promptly and at its own expense either:
- procure for the indemnified party the right to continue using, possessing or receiving the Infringing Item free from any IPR Claim;
- modify the Infringing Item so that the indemnified party’s use, possession or receipt of the Infringing Item ceases to infringe the rights of the relevant third party; or
- replace the Infringing Item with a non-infringing substitute item that complies with the indemnifying party’s obligations under this Agreement.
- Liability under the indemnities given in clause is conditional on the indemnified party discharging the following obligations. If any third party makes a claim, or notifies an intention to make a claim, against the indemnified party which may reasonably be considered likely to give rise to a liability under this indemnity (a “Claim“), the indemnified party shall:
- as soon as reasonably practicable, give written notice of the Claim to the indemnifying party, specifying the nature of the Claim in reasonable detail;
- not make any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of the indemnifying party (such consent not to be unreasonably conditioned, withheld or delayed); and
- give the indemnifying party and its professional advisers access at reasonable
times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the indemnified part, so as to enable the indemnifying party and its professional advisers to examine them and to take copies (at the indemnifying’s expense) for the purpose of assessing the Claim.
- Each party hereby grants to the other during the Term a non-exclusive, non-transferrable licence to use that party’s name and trademark solely to allow the other party to publicise this relationship in accordance with any brand guidelines which may be communicated from time to time. Any and all goodwill arising from either party’s use of the other party’s name or trademark will inure to the benefit of the owner.
- No party grants or transfers to any other party by implication, estoppel or otherwise, any right, title, licence or interest in any Intellectual Property Right otherwise than as specifically set out in this Agreement.
- Each party shall keep the other party’s Confidential Information confidential and shall use Confidential Information only in connection with the proper performance of this Agreement.
- Clause 10.1 shall not apply to any Confidential Information to the extent that it:
- comes within the public domain other than through breach of Clause 10.1;
- is required or requested to be divulged by operation of law;
- is known to the receiving party at the date of this Agreement;
- is disclosed with the other party’s prior written approval to the disclosure;
- is disclosed on a confidential basis for the purpose of obtaining professional advice; or
- is independently developed by the receiving party.
- Each party shall tell the other immediately if it discovers that this Clause 10 has been breached and shall, on request, return to the other all of the other party’s Confidential Information which is in a physical form and destroy any other records containing Confidential Information.
- LIMITATION ON LIABILITY
- Subject to Clause 11.2, neither party shall be liable to the other for any of the following types of loss or damage whether direct or indirect and even if, in each case, the other has been advised of the possibility of such loss or damage:
- special, indirect or consequential loss;
- pure economic loss, costs or damages;
- loss of anticipated savings;
- loss of goodwill; and
- loss or damage arising from loss, damage or corruption of any data.
- The exclusions and limitation of liability set out in this Clause 11 do not apply to:
- liability arising under the indemnities given by the parties under this
- liability arising from death or injury to persons caused by negligence;
- liability arising as a result of fraud; and
- anything else which cannot be excluded or limited by law,
to which no limit applies.
- Subject to Clauses 11.2, the Publisher shall not be liable to RNM for any loss or damage, whether direct or indirect, arising from any advertisements posted by an End User on the Radio Streams.
- Either party may terminate this Agreement:
- at any time without cause with immediate effect at any time;
- if the other party is in material breach of this Agreement and, where such breach is capable of remedy, it fails to remedy such breach within thirty (30) days of receiving notice of such breach; or
- if the other party ceases its business operations or becomes subject to insolvency proceedings.
- Following termination of this Agreement for any reason all licenses granted hereunder shall immediately terminate.
- At RNM’s discretion, the Publisher shall either:
- continue to stream any Playouts booked by the End Users for three (3) months following termination and RNM shall pay the Publisher its share of the Revenue for these Playouts together with any other balances remaining on the Publisher’s Account (if any) but after making any appropriate deduction of RNM’s reasonable administrative charges.
- cease to stream any such booked Playouts on the Radio Streams immediately and RNM shall pay the Publisher its share of the Revenue for these played Playouts (up until the date of the termination of this Agreement) together with any other balances remaining on the Publisher’s Account (if any) but after making any appropriate deduction of RNM’s reasonable administrative charges as set out in the RNM’s Price List.
- All Revenue Payments to the Publisher under this agreement are expressed inclusive of VAT.
- DISPUTE RESOLUTION
- In the event of a dispute arising under this Agreement, authorised representatives of the parties will discuss and meet as appropriate to try to resolve the dispute within fourteen
(14) days of being requested in writing by any party to do so. If the dispute remains unresolved, it will then be referred to a senior manager from each of the parties who will use all reasonable endeavours to resolve the dispute within a further fourteen (14) days.
- Nothing in this clause shall limit the rights of the parties to commence or continue court proceedings in accordance with Clause 24.
- Any notices required to be given to the Publisher by RNM under this Agreement may be sent to the applicable account email address as specified in the Publisher’s Account.
- Any notices required to be given to RNM by the Publisher under this Agreement must be sent to firstname.lastname@example.org.
- Notice is deemed to have been given upon transmission to the correct address, provided that any notice to issue any legal proceedings in relation to this Agreement must be confirmed within 48 hours by courier delivery or recorded delivery post to the correct address
- If any provision of this Agreement is held to be void or otherwise unenforceable by a court of competent jurisdiction from whose decision no appeal is made within the applicable time limit then the provision shall be omitted and the remaining provisions of this Agreement shall continue in full force and effect.
- Failure or delay by either party to exercise any right or remedy under this Agreement shall not be deemed to be a waiver of that right or remedy, or prevent the party from exercising that or any other right or remedy on any occasion.
- ENTIRE AGREEMENT AND AMENDMENTS
- This Agreement constitutes the entire agreement and understanding of the parties relating to the subject matter of this Agreement and supersedes any prior agreement or understanding between the parties relating to the subject matter of this Agreement.
- The parties acknowledge that in entering into this Agreement they do not rely on any statement, representation (including without limitation, any negligent misrepresentation but excluding any fraudulent misrepresentation), warranty, course of dealing, custom or understanding except for the warranties expressly set out in this Agreement.
- The parties irrevocably and unconditionally waive any rights and/or remedies they may have to the fullest extent permitted by law (including without limitation the right to claim damages and/or to rescind this Agreement) in respect of any misrepresentation (including without limitation, any negligent misrepresentation but excluding any fraudulent misrepresentation).
- No change shall be made to this Agreement except in writing signed by the duly authorised representatives of both parties.
- No party shall have the right to terminate this Agreement except in accordance with the termination provisions set out in Clause 12 and the parties hereby waive any common law rights they may have to terminate this Agreement including without limitation for repudiatory breach.
- RELATIONSHIP BETWEEN THE PARTIES
- Nothing in this Agreement shall create or imply an agency, partnership or joint venture between the parties. Neither party shall act or describe itself as the agent of the other party nor shall either party have or represent that it has any authority to make commitments on behalf of the other.
- Neither party shall assign, transfer, charge, create a trust over or otherwise deal in its rights and/or obligations under this Agreement (or purport to do so), without the prior written consent of the other party.
- FURTHER ASSURANCES
- Each party shall, as and when requested by the other party, do all acts and execute all documents as may be reasonably necessary to give effect to the provisions of this Agreement.
- FORCE MAJEURE
- Neither party shall be liable for any failure or delay in the performance of its obligations under this Agreement which is caused by circumstances beyond its reasonable control. If a party is unable to perform any of its substantive obligations for a period of more than fourteen (14) days after the commencement of such failure or delay then the other party may terminate this Agreement by giving the other party seven (7) days’ written notice of termination.
- THIRD PARTY RIGHTS
- The Contracts (Rights of Third Parties) Act 1999 and any legislation amending or replacing this Act shall not apply in relation to this Agreement and nothing in this Agreement shall confer on any third party the right to enforce any provision of this Agreement.
- LAW AND JURISDICTION
- This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
- Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
Last updated: 30.05.2021, 16:09 GMT