ADTONOS

TERMS & CONDITIONS

These Terms and Conditions and any other documents incorporated by reference (the “Terms”) are between Radio Net Media Limited, a company registered in England and Wales with company number 10483422 whose registered office is at 71-75 Shelton Street, Covent Garden, London, WC2H 9JQ (“RNM”), and the entity agreeing to these terms (“Advertiser”).

These Terms are effective as of the date on which the Advertiser accepts them and registers for an Advertiser Account (“Effective Date”). These Terms govern the Advertiser’s access to and use of the advertising streams and data analytics services provided by RNM. RNM agrees to provide the  Services to the Advertiser in accordance with and subject to these Terms.

If you are accepting these Terms on behalf of the Advertiser, you represent and warrant that you: (i) have full legal authority to bind the Advertiser to these Terms; (ii) have read and understood these Terms; and (iii) agree to these Terms on behalf of the Advertiser. If you do not have the legal authority to bind the Advertiser, please do not accept these Terms.

1    DEFINITIONS AND INTERPRETATION

1.1   In these Terms:

“Advertiser’s Account” means the Advertiser’s online account, accessible at [https://app.adtonos.com].

“Advertiser Data” means any data, including images, video, sounds, made available by the Advertiser to RNM to conduct data analytics.

“Advertiser Instruction(s)” means the Advertiser’s instructions, submitted via the Advertiser’s Account, that RNM should stream the Advertising Materials on the Online Radio Streams for the particular Stream Campaign.

“Advertiser Personal Data” means any personal data contained in the Advertiser Data (as such term is defined in the Data Protection Laws) which RNM processes in order to provide the Services.

“Advertising Material(s)” means the advertising materials provided by the Advertiser to RNM in relation to the Playouts for streaming on the Online Radio Streams.

“Applicable Laws” means all applicable laws, regulations and regulatory requirements of England and Wales relating to the performance or receipt of the Services, as amended and in force from time to time.

“Business Day” means any day which is not a Saturday, Sunday or public or bank holiday in England or Advertiser’s country of residence.

“Campaign Price” means the price for the Services to the Advertiser’s Account upon payment of the Fees, entitling the Advertiser to stream of the Advertising Material(s) on Online Radio Streams.

“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 terms or subject matter of these Terms.

“Contract Year” means any 12 month period ending on any anniversary of the date of these Terms.

“Data Protection Laws” 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.

“Fees” means all the fees to be paid by the Advertiser for the Services (including the Campaign Price and, if applicable, any Performance Charge) in accordance with Clause 4, as set out in [https://www.adtonos.com/advertiser/pricing].

“GDPR” means General Data Protection Regulation – (EU) 2016/679).

“Intellectual Property Right“ means all copyright and rights in the nature of copyright, design rights, patents, trademarks, database rights, applications for any of the above, moral rights, rights in confidential information, know-how, domain names and any other intellectual or industrial property rights whether or not registered or capable of registration and whether subsisting in the United Kingdom or any other part of the world.

“Online Radio Owner(s)” means the owner or licensor of the Online Radio Stream(s).

“Online Radio Stream(s)” means the online radio live streams where RNM may play and broadcast the Advertising Material in accordance with the Advertiser Instructions.

“Party”    or    “Parties”    means    the     Advertiser,

RNM, or both; as applicable.

“Performance Charge” means the performance charge to be paid by the Advertiser to RNM for each and every Performance Event by each and every listener of the Online Radio Stream during or as a direct consequence of the Stream Campaign.

“Performance Event” means (i) trackable purchase of the Advertiser’s service or product by the listener of the Online Radio Stream during the Playouts, (ii) trackable click or any other defined action on the Advertiser’s website by the listener of the Online Radio Stream during the Playouts and (iii) and other valid  impression or performance event in connection with the Stream Campaign, as agreed between the Advertiser and RNM.

“Playout” each and every one advertisement played to each and every one Online Radio Stream’s listener during the Stream Campaign on behalf of the Advertiser. 

“RNM Data” means the data feed made available by RNM to Advertiser.

“RNM Material(s)” means any documentation and materials (including, without limitation, any part of the software code or algorithms developed by or on behalf of RNM and/or other software tools and utilities) which are used or provided by RNM in connection with the Services.

“Services” means the services to be provided by RNM to the Advertiser under these Terms, in accordance with the Advertiser Instructions for the agreed Fee, as described in more detail here [https://www.adtonos.com] .

“Stream Campaign” means each and every advertising campaign for the Playouts conducted by RNM for the Advertiser for the agreed Campaign Price, and using the Advertising Material(s) prescribed in the Advertiser Instructions.

“VAT” means value added tax.

1.2          In these Terms:

1.2.1     clause headings are for information only and do not affect the

interpretation of these Terms;

1.2.2     references to documents are to documents as from time to time supplemented or varied;

1.2.3     references to Clauses and/or Parties are to Clauses of and/or Parties to these Terms, respectively;

1.2.4    “writing” includes fax transmission, email and similar means of

communication; and

1.2.5      if the description of a service in general terms is followed by the more specific description of certain elements of that service, the general description of the service shall not be construed restrictively by reference to the elements more specifically described.

1.3      These Terms may be supplemented by additional terms provided by RNM and accepted by the Advertiser from time to time (“Additional Terms”). In the event of any conflict between these Terms and the Additional Terms, the Additional Terms shall prevail.

2    TERM

2.1  These Terms shall commence on the

Effective Date and shall continue in force [for a minimum period of twelve (12) months (the “Term”), after which they shall continue unless terminated by the Parties in accordance with Clause 14.

3   SERVICES

3.1 By submitting an Advertiser Instruction, the Advertiser (or its agents) authorises RNM to:

(a) review, define and generate  the Stream Campaign (including the technical requirements and, if necessary, changes to the Advertising Material(s) and the necessary add-ons) for the Advertiser in accordance with the Advertiser Instructions;

(b) give the estimated Campaign Price and, if necessary and subject to the Advertiser Instructions, calculate any additional taxes, fees and the Performance Charges;

(c) once the proposed Stream Campaign and Campaign Price have been agreed by the Advertiser and the necessary Fee has been pre-paid in advance to the RNM’s nominated account (in clear funds), place an order with the Online Radio Owner(s), on the Advertiser’s behalf, for the play and broadcast of Advertising Material on the Online Radio Stream(s) as well as make the necessary arrangements to allow for the Performance Events to be performed during the Playouts.

Where required by the Online Radio Owner, the Advertiser consents to RNM identifying and pointing out the Advertiser as the source of the Advertising Material.

3.2   Subject to the remainder of this Clause 3, RNM shall comply with the Advertiser Instructions. RNM may play and broadcast the Advertising Material at an Online Radio Stream for longer than the period specified by the Advertiser, provided this is at no cost to the Advertiser.

3.3  RNM shall have the right to refuse to play and broadcast any Advertising Material, or remove any Advertising Material from a stream, if (in RNM’s absolute discretion) such Advertising Material is in breach of these Terms or the terms and conditions of the Online Radio Owner. RNM may also remove Advertising Material from an Online Radio Stream if directed to do so by the Online Radio Owner. RNM shall not have any liability to the Advertiser for exercising its rights under this Clause 3.3.

3.4 RNM cannot guarantee the availability of specific Online Radio Stream(s) or any specific streams. RNM shall notify the Advertiser, electronically via the Advertiser’s Account, if it is unable to comply with the Advertiser Instructions due to lack of available Online Radio Streams, whereupon RNM shall (at its discretion): (a) offer the Advertiser alternative Online Radio Stream(s); and/or (b) credit the Advertiser’s Account with the amount equal to the extent it has been unable to fulfil the Advertiser Instructions.

3.5   The Advertiser acknowledges that RNM cannot guarantee the consistent delivery of the Online Radio Stream(s). RNM shall not be liable for any downtime of the Online Radio Stream(s), or any loss, costs or damage incurred by the Advertiser as a result of any failure to play and broadcast the Advertising Material from time to time.

4       FEES

4.1  The Advertiser must pay the Fees (plus any applicable VAT if applicable) by direct bank transfer payments from the Advertiser’s bank account. Fees are acceptance of these Terms.

4.2 Should the Advertiser fail to make any payment in full of any Fees due, interest on the outstanding amount shall accrue on a daily basis from the due date until the date of payment (whether before or after judgment) at the rate of 3% above the base rate of Barclays Bank PLC from time to time. The Parties agree that this Clause 4.2 is a substantial remedy and is fair for the purposes of Section 8 of the Late Payment of Commercial Debts (Interest) Act 1998.

4.3 RNM shall further be entitled to suspend the performance of the Services during any period in which any Fees remain unpaid in accordance with the provisions of this Clause 4.

4.4 All sums payable to RNM under these Terms shall become immediately payable on termination of these Terms for whatever reason.

5    STREAM CAMPAIGN

5.1 Upon payment of the Fees, the Advertiser’s Account will be credited with the NET figure of any such amount and this amount will appear on the Advertiser’s  Account.

5.2 The Campaign Price may fluctuate and change in real time, depending on (i) behaviour of other advertisers and listeners, (ii) demand for the particular Online Radio Stream at the particular time, (iii) availability of the particular stream; (iv) the currency used by the particular Online Radio Owner (in which case the Campaign Price will need to be re-calculated from the Advertiser’s currency to the one of the Online Radio Owner by reference to the exchange rates used by AdTonos.com) and (v) any other reasons which RNM will consider reasonable.

The Advertiser shall, apart from agreeing the proposed Campaign Price, also stipulate and notify RNM about the maximum cost per play (CPP) rate it is prepared to pay during the Stream Campaign. Any additional Fees that may be incurred by RNM in relation to this, will be deducted from the Advertiser’s Account.

5.3 The Stream Campaign will only commence, once the stream terms offered by the particular  Online Radio Owner(s) will reflect the Advertiser Instructions and be within the ranges of the Campaign Price as agreed by the Advertiser.

5.4 The corresponding amount of the Campaign Price will be deducted from the Advertiser’s Account upon receipt by RNM of the Advertiser Instructions.

5.5 Each Stream Campaign will remain active until (i) the funds available in the Advertiser’s Account are available to cover the Stream Price, (ii) it has been stopped by either RNM or the Advertiser. RNM has no obligation to provide reasons as to why it has decided to stop the Stream Campaign.

5.6 If RNM has been unable to comply with the Advertiser Instructions due to lack of available Online Radio Stream(s), the Advertiser will be entitled to keep or re-use the Fees already paid for another Stream Campaign.

5.7 In the event that RNM is unable to place the Advertising Material for the particular Stream Campaign for more than four (4) consecutive months, RNM shall not be required to refund the Fees paid by the Advertiser but the Advertiser shall has the right to use those Fees for another Stream Campaign provided that any such new Stream Campaign commences within one (1) consecutive months of the expiry of the original Stream Campaign. This Clause 5.7 sets out the Advertiser’s sole and exclusive remedy in the event of non-availability of Online Radio Streams for the particular Stream Campaign.

5.8 In the case of the Advertiser Instruction being changed during the any Stream Campaign, and RNM being unable to comply with any such change,  RNM has the right to continue the Stream Campaign which as much as possible reflects the required change and, if not possible, complete the Stream Campaign as originally agreed with the Advertiser.

5.9 In case of any Performance Events being performed and resulting in the Performance Charges accruing, these charges will also be displayed on and deducted from the Advertiser’s Account. Any such Performance Charges shall be due and payable in accordance with clause 4.

6     SUB-CONTRACTORS

6.1  RNM may engage subcontractors, suppliers and/or agents to provide the Services or any part of them.

7     ADVERTISER’S OBLIGATIONS

7.1  To the extent necessary to enable RNM to deliver the Services (or any part(s) thereof), the Advertiser shall provide RNM with such information as RNM reasonably requires to enable it to discharge its obligations under these Terms.

7.2 In order to receive the Services, the Advertiser must register for an Advertiser’s Account. The Advertiser is responsible for all activity conducted under its Advertiser’s Account. The Advertiser must maintain the security and confidentiality of its username and password as well as keeping its information (including but not limited to personal and financial information) up to date.

7.3 The Advertiser shall be responsible for the Advertising Materials, including for ensuring: (i) their accuracy and completeness; (ii) their compliance with Applicable Laws and any policies of the Online Radio Owner(s) communicated by RNM to the Advertiser from time to time.

7.4 The Advertiser should retain a copy of any Advertising         Materials provided to RNM. RNM will not be responsible for any errors or omissions in the Advertising Materials, or any loss or damage to the Advertising Materials as a result of the Services.

7.5 The Advertiser shall provide the Advertising Materials in the format specified by RNM or the Online Radio Owner(s) for each Stream Campaign. The Advertiser acknowledges that any Advertising Materials provided in an incorrect format may not be able to be streamed on the Online Radio Stream(s) may be streamed at a lower quality.

7.6  RNM shall not be liable for any failure to carry out any of its obligations under these Terms where the Advertiser is in breach of its obligations under this Clause 7.

8    WARRANTIES

8.1 Each Party warrants to the other that:

8.1.1 it has the power and authority to enter into and perform these Terms, which constitutes valid and binding obligations on it in accordance with its terms; and

8.1.2 it will, in the performance of these Terms, comply with all Applicable Laws.

8.2 The Advertiser warrants and represents:

8.2.1 that it owns or has all necessary rights in and to the Advertising Materials, in order for their broadcast and stream, copy and reproduction by  RNM to provide the Services;

8.2.2 that the Advertising Materials will comply with all Applicable Laws and industry guidance, including the British Code of Advertising Sales Promotion and Direct Marketing (as amended or reissued from time to time) and the Radio Authority Code of Advertising Standards and Practice and Programme Sponsorship (as amended or

reissued from time to time); and

8.2.3 that the Advertising Materials will not infringe the rights of any third party, including (without limitation) any intellectual property or privacy rights, and are not offensive or defamatory.

8.3  To the maximum extent permitted by Applicable Laws, other than those warranties that are set out in these Terms, all warranties, whether express or implied, are excluded and, in particular, RNM does not warrant that the Services will meet the Advertiser’s particular requirements, whether or not those requirements have been made known to RNM.

9  INTELLECTUAL PROPERTY RIGHTS

9.1 The Advertiser hereby grants to RNM a non-exclusive licence to use, access, copy and maintain the Advertising Materials for the purpose of providing the Services, together with the right to grant sub-licences where necessary to enable RNM to provide the Services.

9.2 The Advertiser agrees that the Intellectual Property Rights in RNM Materials shall remain vested in RNM and nothing in these Terms shall result in the Advertiser owning any Intellectual Property Rights in the RNM Materials or confer any assignment of an interest in the Intellectual Property Rights in the RNM Materials save for the licence granted under this Clause 9.2. Subject to the foregoing, RNM hereby grants to the Advertiser a non-exclusive, non-transferable, perpetual licence to use the Intellectual Property Rights in the RNM Materials in accordance with these Terms to the extent necessary for the Advertiser to access the Services.

10  INDEMNITY

10.1 The Advertiser shall indemnify RNM from and against all losses, actions, damages, expenses (including reasonable legal fees), penalties and claims brought against RNM, its officers, agents and sub-contractors arising out of or in connection with:

10.1.1 any allegation that use by RNM of the Advertising Materials has infringed any Intellectual Property Rights of a third party; or

10.1.2 the Advertiser’s use of the Services otherwise than in accordance with these Terms (and any other written instructions issued by RNM from time to time); or

10.1.3 any breach by the Advertiser of Applicable Laws, including the Data Protection Laws;

10.1.4 any other claims which can reasonably be attributed to the Advertiser.

11  DATA

11.1 Subject to this Clause 11, the Advertiser shall be entitled to access the RNM Data via the Advertiser’s Account. RNM hereby grants to the Advertiser a non-exclusive, non-transferable, perpetual licence to use the RNM Data for its internal business purposes. However, the RNM Data shall remain at all times the property of RNM.

11.2       RNM makes no representation regarding the accuracy or availability of the RNM Data.

11.3 Where the Advertiser has subscribed to the Services, the Advertiser acknowledges that RNM’s ability to provide the Services is dependent upon the full and timely co-operation of the Advertiser (which the Advertiser agrees to provide), as well as the accuracy and completeness of any Advertiser Data provided to RNM.

11.4 If, in consequence of performing its obligations under these Terms, RNM is required to have access to, and/or use of, any of the Advertiser’s:

11.4.1 systems including (but not limited to) any equipment, software, hardware or firmware, database or           file,       whether directly            or remotely; and/or

11.4.2 information, data and documentation,

(“Access”), then the Advertiser shall promptly provide such Access to RNM provided that all Access will be limited to that part of the Advertiser’s systems or computer systems, software, hardware, firmware, information, data, documentation or key stakeholders (as the case may be) as is reasonably required for the performance of RNM’s obligations under these Terms.

11.5 The Advertiser acknowledges and agrees that the Services are an automated process, and do not constitute advice. RNM does not make any representations regarding the suitability or benefit of the Services for the Advertiser’s business.

11.6 The Advertiser shall comply with the requirements of Data Protection Laws in respect of its obligations under these Terms, and shall not do anything or permit anything to be done which might lead to a breach by RNM of Data Protection Laws.

11.7 With respect to the Parties’ rights and obligations under these Terms with regard to Advertiser Personal Data, the Parties agree that the Advertiser is the data controller and that RNM is the data processor, as those terms are defined under the Data Protection Laws. The Advertiser acknowledges that (as between the Advertiser and RNM) it is and shall remain solely responsible for determining the purposes and the means of RNM’s processing of the Advertiser Personal Data in the course of performing its obligations under these Terms.

11.8 RNM will comply with, and only process the Advertiser Personal Data in accordance with, the instructions given from time to time by the Advertiser.

11.9       RNM will implement appropriate technical and organisational measures to protect the Advertiser Personal Data against unauthorised or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure.

12    CONFIDENTIALITY

12.1 Each Party shall keep the other Party’s Confidential Information confidential and shall use Confidential Information only in connection with the proper performance of these Terms.

12.2  Clause 12.1 shall not apply to any Confidential Information to the extent that it:

12.2.1 comes within the public domain other than through breach of Clause 12.1;

12.2.2 is required or requested to be divulged by operation of law;

12.2.3 is known to the receiving Party at the date of these Terms;

12.2.4 is disclosed with the other Party’s prior written approval to the disclosure;

12.2.5 is disclosed on a confidential basis for the purpose     of         obtaining professional advice; or

12.2.6 is independently developed by the receiving Party.

12.3    Each Party shall tell the other immediately if it discovers that this Clause 12 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.

13    LIMITATIONS OF LIABILITY

13.1    Subject to Clauses 13.3, the aggregate liability of RNM under or in connection with these Terms, whether arising from contract, negligence or otherwise, shall be limited to 100% of the Fees paid or payable by the Advertiser in the Contract Year (or, as the case may be, in part of the Contract Year if these Terms expire or are terminated before the end of such Contract Year) in which the liability arises.  

13.2 Subject to Clauses 13.3, RNM shall not be liable to the Advertiser for any of the following types of loss or damage even if, in each case, RNM has been advised of the possibility of such loss or damage:

13.2.1     special, indirect or consequential loss;

13.2.2     pure economic loss, costs, damages or Fees;

13.2.3    loss of profits;

13.2.4     loss of revenue;

13.2.5     loss of contracts;

13.2.6    loss of anticipated savings;

13.2.7    loss of business;

13.2.8    loss of use;

13.2.9    loss of goodwill; and

13.2.10 loss or damage arising from loss, damage or corruption of any data.

13.3  The exclusions and limitation of liability set out in this Clause 13 do not apply to:

13.3.1 liability arising from death or injury to persons caused by negligence;

13.3.2 liability arising as a result of fraud; and

13.3.3 anything else which cannot be excluded or limited by Applicable Law, to which no limit applies.

14   TERMINATION

14.1 The Advertiser may terminate these Terms at any time on one (1) weeks’ notice.

14.2RNM may terminate these Terms at any time without any notice, in which event RNM may (at its own discretion), subject to any applicable administrative charges, refund the portion of the Fees for any unused Fee.  Any such Fees not claimed by the Advertiser within 30 days of termination shall be forfeited by RNM and the Advertiser shall have no right to claim it back.

14.3 Either Party may terminate these Terms if: (a) the other Party is in material breach of these Terms and fails to remedy such breach within 30 days of receiving notice of such breach; or (b) if the other Party ceases       its       business operations      or becomes      subject             to insolvency proceedings.

14.4 RNM shall have no obligation to retain any Advertising Materials in its possession after termination of these Terms.

15   SURVIVAL

15.1Termination of these Terms (howsoever occurring) shall not affect either of the Parties’ accrued rights or liabilities or affect the coming into force or the continuance in force of any provision which is expressly or by implication intended to come into or continue in force on or after termination or expiry, including Clause 4 (Fees), Clause 10 (Indemnity), Clause 12 (Confidentiality), Clause 13 (Limitations of Liability), this Clause 15 (Survival) and Clause 20 (Governing Law and Jurisdiction).

16  FORCE MAJEURE

16.1 Neither Party shall be in breach of these Terms nor liable for delay in performing, or failure to perform, any of its obligations under these Terms if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected Party shall be entitled to a reasonable extension of time for performing such obligations. If the period of delay or non-performance continues for fourteen (14) days, the Party not affected may terminate these Terms by giving seven (7) days’ written notice to the affected Party.  

17   PUBLICITY

17.1 RNM shall be entitled to refer to the Advertiser by name and/or by logo in its reports, case studies and publicity materials unless the Advertiser informs RNM via email that it is not willing to be included in such materials.

18    VARIATION OF THESE TERMS

18.1  RNM may vary these Terms from time to time, and will post any revisions on its website. The Advertiser should regularly check the RNM website to review the then-current version of these Terms.    Any      subsequent Advertiser Instructions issued after the posting of the revised Terms will constitute a binding acceptance of those Terms by the Advertiser.

19  GENERAL

19.1The Advertiser shall not assign, transfer, charge, create a trust over or otherwise deal in its rights and/or obligations under these Terms (or purport to do so), without RNM’s prior written consent.

19.2 Nothing in these Terms shall be deemed to constitute a relationship of principal and agent (except as expressly provided in these Terms), a partnership, joint venture, co-ownership or any employment relationship between the Parties.  Neither Party shall have the authority to act for, bind or otherwise create or assume any obligation on behalf of the other, and neither Party shall hold itself out as having authority to do the same.

19.3 The Parties do not intend any third party to have the right to enforce any provision of these Terms under the Contracts (Rights of Third Parties) Act 1999 or otherwise.

19.4       These Terms replace all previous agreements between the Advertiser and RNM in relation to the Services.

19.5  No failure or delay by either Party to exercise any right or remedy under these Terms shall be construed as a waiver of that right or remedy nor shall any single or partial exercise of any right or remedy preclude the further exercise of that right or remedy.  No waiver by either Party of any breach of these Terms shall be considered as a waiver of a preceding or subsequent breach.

19.6  If any term of these Terms is found to be illegal, invalid or unenforceable under any applicable law, such term shall, to the extent it is severable from the remaining terms, be deemed omitted from these Terms and shall not affect the legality, validity or enforceability of the remaining terms.  The Advertiser and RNM shall try to agree on a suitable clause to replace the one which is deemed omitted.  The new clause should, as far as possible, achieve the same economic, legal and commercial aims as the omitted one.

19.7       Except as expressly provided under these Terms, the rights and remedies contained in these Terms are cumulative and are not exclusive of any other rights or remedies provided by law or otherwise.

19.8 Any notices required to be given to the Advertiser under these Terms may be sent to the applicable account email address. Any notices required to be given to RNM under these Terms must be sent to [support@adtonos.com]. 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 these Terms must be confirmed within 48 hours by courier delivery or recorded delivery post to the correct address.

20  GOVERNING LAW AND JURISDICTION

20. These Terms and any non-contractual obligations arising in connection with it shall be governed by the law of England and Wales, and each Party agrees to submit any dispute which may arise out of, under, or in connection with these Terms including disputes relating to any non-contractual obligation, to the exclusive jurisdiction of the courts of England and Wales.

Last updated:  16.05.2018