PUBLISHER TERMS OF USE
AdTonos
WELCOME
This service agreement (“Agreement”) is between you, the entity agreeing to this Agreement (“Publisher”); and us, namely RADIO NET MEDIA LIMITED (trading as AdTonos), a company registered in England and Wales 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 on the date the Publisher accepts it and registers for a Publisher Account (“Effective Date”). This Agreement governs the Publisher’s access to and use of the AdTonos Platform (as defined below) and the Monetisation Solutions (as defined below) and data analytics services provided by RNM.
If you are accepting this Agreement on behalf of the Publisher, you represent and warrant that you:
- have full legal authority to bind the Publisher to this Agreement;
- have read and understood this Agreement; and
- 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.
BACKGROUND
(A) RNM operates a platform and marketplace for digital audio advertising under the name AdTonos (“AdTonos Platform”). The AdTonos Platform works with brands and advertisers worldwide and services millions of digital audio advertising campaign playouts in radio and music streaming, podcasts and mobile apps. The AdTonos Platform connects radio stations and audio publishers with advertisers all over the world.
The AdTonos Platform and the Monetisation Solutions monetise audio streams such as live radio, podcasts, music streaming, gaming and online radio, and in particular:(1) offer real-time advertisement replacement for mid-rolls and pre-rolls insertion, along with an advertisement server integrated with DSPs to deal on private and open markets, as well as provide direct sales; (2) exchange broadcasted on-air commercial breaks into a targeted set of advertisements online; (3) enable integration of radio stations in minutes; (4) build a value of network of publishers, streaming service providers and advertisers.
(B) The Publisher owns or has the right to operate specific online radio stations, mobile apps/gaming, music streaming, podcasts and audiobooks (“Channels”).
(C) The Publisher wishes to receive a share of RNM’s revenues from the operation of the AdTonos Platform and selected Monetisation Solutions on selected Channels and RNM has agreed to provide the Publisher with a share of such revenues on the terms set out in this Agreement.
(D) The Publisher will make the Publisher’s Channels available to RNM and enable RNM to integrate the Publisher’s Channels with the AdTonos Platform and the selected Monetisation Solutions.
(E) RNM will write any reasonably necessary code to enable such integration of the AdTonos Platform and the selected Monetisation Solutions and RNM will retain the ownership of that code.
(F) The Publisher may from time to time require RNM to provide software related and / or creative works services to it. Where RNM is agreeable to the provision of such services, they should be undertaken in accordance with this Agreement.
AGREED TERMS
1.1 The definitions and rules of interpretation in this clause 1 shall apply in this Agreement.
AdTonos Platform: has the meaning given in the Background to this Agreement.
Applicable Laws: means all applicable laws, regulations and regulatory requirements of the relevant jurisdiction, as amended and in force from time to time, relating specifically to the performance of the parties’ respective obligations under this Agreement;
Additional Services: means all and any services which are additional to the AdTonos Platform and / or any Monetisation Solutions including but not limited to Creative Works provided by RNM to the Publisher in accordance with clause 9.
Applicable Data Protection Laws: means: (a)to the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data. (b)to the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which RNM is subject, which relates to the protection of personal data. (c)to the extent US privacy laws apply, the relevant state specific laws and federal laws from time to time in force.
Availability Requirement: 24 hours a day, 7 days a week.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Charges: means the charges for the Additional Services payable by the Publisher to RNM as more particularly set out in the Order.
Confidential Information: has the meaning given in clause 14.1.
Content: any content which is distributed via the Publisher’s Channels including without limitation advertisements.
Creative Works: the creative works set out in the Specification.
Documentation: means the documentation relating to the AdTonos Platform available at
https://www.adtonos.com/docs/publisher
https://app.adtonos.com/docs/AdTonos_VAST_DAAST_integration.pdf
https://app.adtonos.com/docs/AdTonos_Drumbeat.pdf
Drumbeat Inventory: means the total number of advertisement spaces serviced by the AdTonos Platform and / or available for sales.
Drumbeat Service: means the service provided by RNM pursuant to clause 10 of this Agreement.
Drumbeat Software: RNM’s software necessary for the provision of the Drumbeat Monetisation Solution.
Drumbeat Website: https://www.adtonos.com/our-solutions/drumbeat/
End User: means a customer of RNM who is an end user (also referred to as an “Advertiser”) of all or any of the Publisher’s Channels.
EU GDPR: the 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.
Monetisation Solutions: RNM’s software products for publishers including without limitation Audiopixel, YoursTruly, Sandstorm SDK,, Twilight, Drumbeateach as more particularly described on the Website and on the AdTonos Platform.
Normal Business Hours: 8.00am to 6.00pm local UK time, each Business Day.
Order: the Publisher’s order for Additional Services.
Playout: each and every one advertisement played to each and every individual listener via any Publisher Channel on behalf of an End User.
Publisher Account: means the Publisher’s online publisher account, accessible at https://app.adtonos.com.
Publisher Cause: means (a) any improper use, misuse or unauthorised use of the AdTonos Platform or any Monetisation Solutions; (b) any use of the AdTonos Platform or any Monetisation Solutions in a manner inconsistent with the then current Documentation.
Publisher’s Channels: the Channels selected by the Publisher in accordance with clause 3.1.
Publisher’s Dashboard: means the dashboard available on the Publisher’s Account.
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 Inventory: means the whole of the advertisement space available to the AdTonos Platform for sales, both direct and programmatic.
Publisher Materials: means the software which operates the Publisher’s Channels and all other Intellectual Property Rights in any other materials which are owned by the Publisher at the date of this Agreement.
Publisher Personal Data: any personal data which RNM processes in connection with this Agreement, in the capacity of a processor on behalf of the Publisher.
Publisher’s Revenue Share: the Publisher’s share of the Revenue as agreed between the Publisher and RNM prior to the generation of any Revenue and as set out on the Publisher’s Dashboard.
Representatives: has the meaning given in clause 14.2.
Revenue: the net income (excluding VAT) paid or credited to RNM’s account from all activities relating to the exploitation of the AdTonos Platform and subject to clause 4.3 the selected Monetisation Solutions using the Publisher’s Channels 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 AdTonos Platform, the Monetisation Solutions including the Drumbeat Software and any software created by RNM to allow the AdTonos Platform to integrate with the controlling software of the Publisher’s Channels in relation to the Playouts and all Intellectual Property Rights in any other materials which are owned by RNM at the date of this Agreement but excluding Sandstorm SDK which shall be dealt with in accordance with clause 13.
RNM Personal Data: any personal data which RNM processes in connection with this Agreement, in the capacity of a controller.
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/.
Sandstorm SDK: the software development kit owned by RNM and branded as Sandstorm being a Monetisation Solution for mobile inventories, compatible with Google Android, Apple iOS and Unity Engine. The Sandstorm SDK allows the Publisher to play audio ads triggered accordingly to the use case scenarios provided by the RNM.
Specification: the description or specification of the Additional Services provided in an email confirmation from RNM to the Publisher.
Support Services Policy: RNM’s policy for providing support in relation to the AdTonos Platform and Monetisation Solutions as set out on the Website and amended from time to time.
UK GDPR: has the meaning given to it in the Data Protection Act 2018.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
Vulnerability: a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be interpreted accordingly.
Website: www.adtonos.com
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.
This Agreement shall commence on the Effective Date and continue in force until terminated in accordance with clause 16 (“Term”).
3.1 Following the creation of the Publisher’s Account, the Publisher shall select the Publisher’s Channels and Monetisation Solutions it wishes to use and provide RNM with:
3.1.1 in relation to Radio Streams:
(a) stream(s) links to the Radio Streams;
(b) break indicator files (intro and outro);
3.1.2 in relation to podcasts – links to RSS Feed of a podcast;
3.1.3 in relation to mobile inventory (mobile applications, mobile games) – a link to the application in Google Play or Apple AppStore;
3.1.4 if applicable, the Publisher’s national VAT number;
3.1.5 any other information (including, if necessary, Publisher Materials) which RNM may reasonably require in order to integrate the AdTonos Platform and selected Monetisation Solutions with the Publisher’s Channels to allow RNM to effect Playouts.
3.2 The Publisher shall provide RNM with access to up-to-date availability information relating to the Publisher’s Channels through the Publisher’s Account.
3.3 RNM shall be entitled to book advertising space on the available Publisher’s Channels on behalf of End Users.
4.1 The Publisher’s Revenue Share will appear on the Publisher’s Dashboard in accordance with the terms of this Agreement.
4.2 Invalid activity for which Revenue will not be generated includes:
4.2.1 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;
4.2.2 clicks solicited or impressions generated by payment of money, false representation or requests for end users to click advertisements or take other actions;
4.2.3 advertisements served to End Users whose browsers have JavaScript disabled; and
4.2.4 clicks or impressions co-mingled with a significant amount of the activity described in 4.2.1, 4.2.2 and 4.2.3 above.
4.3 The Publisher’s Revenue Share shall only extend to Revenue generated from the Drumbeat Service if RNM is granted programmatic and / or direct access to the Publisher’s Inventory.
5.1 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’s Revenue Share arising in each calendar month during the Term (each a “Revenue Share Payment”). All Revenue Share Payments shall be based on RNM’s own accounting and internal real time reporting and shall only be payable to the extent the Revenue from which such Revenue Share Payment derives is received in full and cleared funds by RNM from the relevant End User.
5.2 At the end of each calendar month RNM will generate (in the Publisher’s name) and provide the Publisher with an invoice addressed from the Publisher to RNM for the Publisher’s Revenue Share (“Revenue Invoice”).
5.3 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.
5.4 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 local laws and regulations applicable to the Publisher.
5.5 If, for any reason, there is a positive balance on the Publisher’s Account in addition to the Revenue Share Payment which is due to the Publisher as set out in in clause 5.1, the Publisher has the right to request RNM to transfer it to the Publisher once a month without 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.
6.1 Each party warrants to the other that:
6.1.1 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;
6.1.2 it will, in the performance of this Agreement, comply with all Applicable Laws;
6.1.3 it will not promote, facilitate or otherwise include any material that otherwise infringes or is alleged to infringe upon or violate the rights of any third party.
6.2 Each party represents and warrants to the other party that:
6.2.1 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
6.2.2 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).
6.3 The Publisher warrants to RNM that, for all Content streamed outside and without the use of the RNM’s Materials, the Publisher shall:
6.3.1 remain wholly and solely liable in case of any claim made by such advertisements displayed against RNM;
6.3.2 actively defend RNM against and during any such claim; and
6.3.3 indemnify RNM against all costs, expenses, damages and liability whatsoever (including legal costs and awards ordered against RNM).
7.1 For the purposes of this clause 7, the terms controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the UK GDPR.
7.2 Both parties will comply with all applicable requirements of Applicable Data Protection Laws. This clause 7 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under Applicable Data Protection Laws.
7.3 The parties have determined that, for the purposes of Applicable Data Protection Laws:
7.3.1 RNM shall act as controller in respect of RNM Personal Data;
7.3.2 RNM shall process the Publisher Personal Data as a processor on behalf of the Publisher in respect of the following particulars of processing:
(a) Purpose of processing: for the purpose of performing audio advertising targeting and other advertising activities.
(b) Nature of processing: contacting and liaising with the Publisher in order to provide the Publisher with access to the AdTonos Platform and Monetisation Solutions.
(c) Duration of the processing: the Term.
(d) Types of personal data: full names, email addresses and contact telephone numbers.
(e) Categories of data subject: individual listeners / audience of advertisements.
7.4 Should the determination in clause 7.3 change, then each party shall work together in good faith to make any changes which are necessary to this clause 7.
7.5 Without prejudice to the generality of clause 7.2, the Publisher will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the RNM Personal Data and Publisher Personal Data to RNM and / or lawful collection of the same by RNM for the duration and purposes of this Agreement.
7.6 Without prejudice to the generality of clause 7.2, RNM shall, in relation to Publisher Personal Data:
7.6.1 process that Publisher Personal Data only on the documented instructions of the Publisher, unless RNM is required by Applicable Data Protection Laws to otherwise process that Publisher Personal Data. Where RNM is relying on Applicable Data Protection Laws as the basis for processing Publisher Processor Data, RNM shall notify the Publisher of this before performing the processing required by the Applicable Data Protection Laws unless those Applicable Data Protection Laws prohibit RNM from so notifying the Publisher on important grounds of public interest. RNM shall inform the Publisher if, in the opinion of RNM, the instructions of the Publisher infringe Applicable Data Protection Laws;
7.6.2 implement technical and organisational measures to protect against unauthorised or unlawful processing of Publisher Personal Data and against accidental loss or destruction of, or damage to, Publisher Personal Data;
7.6.3 ensure that any personnel engaged and authorised by RNM to process Publisher Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;
7.6.4 assist the Publisher insofar as this is possible (taking into account the nature of the processing and the information available to RNM), and at the Publisher’s cost and written request, in responding to any request from a data subject and in ensuring the Publisher’s compliance with its obligations under Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
7.6.5 notify the Publisher without undue delay on becoming aware of a personal data breach involving the Publisher Personal Data;
7.6.6 at the written direction of the Publisher, delete or return Publisher Personal Data and copies thereof to the Publisher on termination of the Agreement unless RNM is required by Applicable Data Protection Laws to continue to process that Publisher Personal Data. For the purposes of this clause, Publisher Personal Data shall be considered deleted where it is put beyond further use by the RNM; and
7.6.7 maintain records to demonstrate its compliance with this clause.
7.7 The Publisher hereby provides its prior, general authorisation for RNM to:
7.7.1 appoint processors to process the Publisher Personal Data, provided that RNM:
(a) shall ensure that the terms on which it appoints such processors comply with Applicable Data Protection Laws, and are consistent with the obligations imposed on RNM in this clause;
(b) shall remain responsible for the acts and omission of any such processor as if they were the acts and omissions of RNM; and
(c) shall inform the Publisher of any intended changes concerning the addition or replacement of the processors, thereby giving the Publisher the opportunity to object to such changes provided that if the Publisher objects to the changes and cannot demonstrate, to RNM’s reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Laws, the Publisher shall indemnify RNM for any losses, damages, costs (including legal fees) and expenses suffered by RNM in accommodating the objection.
7.7.2 transfer Publisher Personal Data outside of the UK as required provided that RNM shall ensure that all such transfers are effected in accordance with Applicable Data Protection Laws. For these purposes, the Publisher shall promptly comply with any reasonable request of RNM, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer), or adopted by the UK Information Commissioner from time to time (where the UK GDPR applies to the transfer), or relevant clauses and / or agreements (where US privacy laws apply to the transfer).
7.8 Either party may, at any time on not less than 30 days’ notice, revise this clause 7 by replacing it (in whole or part) with any applicable standard clauses approved by the EU Commission or the UK Information Commissioner’s Office or other regulator or forming part of an applicable certification scheme or code of conduct (“Amended Terms”). Such Amended Terms shall apply when replaced by attachment to this Agreement, but only in respect of such matters which are within the scope of the Amended Terms.
8.1 The Publisher shall at all times:
8.1.1 use its best endeavours to maintain a high and attractive level of each Publisher Channel’s Content in order to promote, develop and increase online traffic on the Publisher’s Channels;
8.1.2 provide access to the Publisher’s Channels that are mutually agreed for the benefit of this Agreement through the AdTonos Platform;
8.1.3 not use the AdTonos Platform or the Publisher’s Account otherwise than in accordance with this Agreement;
8.1.4 provide and maintain accurate contact and payment information on the Publisher’s Account;
8.1.5 maintain efficient communication with RNM;
8.1.6 alert RNM of any technical issues on the Publisher’s Channels;
8.1.7 notify RNM of its plans to make changes, updates and/or close down the Publisher’s Channels with at least 1 month’s prior written notice;
8.1.8 provide RNM with the Publisher’s standard audience data for each advertising campaign;
8.1.9 accept playout rates including base rate and the cost per play (“Playout Rates”) as agreed by RNM with End Users;
8.1.10 not alter, modify and/or expand the Playouts streamed on the Publisher’s Channels by the AdTonos Platform;
8.1.11 not be entitled to information or data other than those appearing on the Publisher’s Account; and
8.1.12 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 Publisher Channel (which shall be construed to mean each individual radio station or podcast etc);
B – the number of the Publisher Channel’s listeners in that calendar month for each and every single Publisher Channel.
8.2 RNM shall:
8.2.1 upon the Publisher’s acceptance of this Agreement, carry out its own checks and surveys in respect of the Publisher;
8.2.2 subject to those checks being successful, set up the Publisher Account on the AdTonos Platform for administrative, legal, financial and revenue collecting purposes of the Publisher;
8.2.3 agree Playout Rates with End Users;
8.2.4 provide maintenance and upgrades to the software contained within the AdTonos Platform and the selected Monetisation Solutions, enabling potential advertisers to be able to access the Publisher’s Channels at all times;
8.2.5 provide access to the AdTonos Platform to all End Users;
8.2.6 alert the Publisher and End Users of any agreed changes in RNM’s Price List; and
8.2.7 write any reasonably necessary code to enable the integration of the AdTonos Platform with the Publisher’s software, for the avoidance of doubt RNM shall retain all Intellectual Property Rights in such code.
8.3 RNM shall have the right to:
8.3.1 refuse or limit the Publisher’s access to the AdTonos Platform;
8.3.2 refuse to set up the Publisher’s Account;
8.3.3 change and update the terms of this Agreement with 30 days’ prior notice. If the Publisher continues to use the AdTonos Platform after the expiry of this period, the Publisher will be deemed to have accepted the changes to this Agreement;
8.3.4 change and update the Playout Rates within the AdTonos Platform with 30 days’ prior notice. If the Publisher continues to use the AdTonos Platform after the expiry of this period, the Publisher will be deemed to have accepted the changes to this Agreement;
8.3.5 RNM shall:
(a) use commercially reasonable endeavours to ensure the AdTonos Platform is available and functioning at the Availability Requirement 95% of the time, except for:
(I) planned maintenance carried out during the maintenance window of 4.00am to 8.00am UK time; and
(II) unscheduled maintenance performed outside Normal Business Hours, provided that RNM has used reasonable endeavours to give the Publisher at least 6 Normal Business Hours’ notice in advance.
(b) RNM will, as part of the AdTonos Platform and at no additional cost to the Publisher, provide the Publisher with RNM’s standard customer support services during Normal Business Hours in accordance with RNM’s Support Services Policy in effect at the time that the AdTonos Platform is provided. RNM may amend the Support Services Policy in its sole and absolute discretion from time to time.
8.4 RNM undertakes that the AdTonos Platform will perform substantially in accordance with the Documentation and with reasonable skill and care.
8.5 The undertaking above shall not apply to the extent of any non-conformance which is caused by use of the AdTonos Platform contrary to RNM’s instructions, or modification or alteration of the AdTonos Platform by any party other than RNM or RNM’s duly authorised contractors or agents. If the AdTonos Platform does not conform with the foregoing undertaking, RNM will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Publisher with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Publisher’s sole and exclusive remedy for any breach of the undertaking set out above.
8.6 RNM:
8.6.1 does not warrant that:
(a) the Publisher’s use of the AdTonos Platform and Monetisation Solutions will be uninterrupted or error-free;
(b) that the AdTonos Platform and Monetisation Solutions will meet the Publisher’s requirements;
(c) the AdTonos Platform and Monetisation Solutions will be free from Vulnerabilities or Viruses;
8.6.2 is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Publisher acknowledges that the AdTonos Platform and Monetisation Solutions and any associated service level agreements may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
8.7 This Agreement shall not prevent RNM from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.
8.8 RNM warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.
8.9 RNM shall perform a backup of the AdTonos Platform every 24 hours and the backups are stored for 30 days in a separate secure environment. In the event of any loss or damage to Publisher data, the Publisher’s sole and exclusive remedy against RNM shall be for RNM to use reasonable commercial endeavours to restore the lost or damaged Publisher data from the latest back-up of such Publisher data maintained by RNM. RNM shall not be responsible for any loss, destruction, alteration or disclosure of Publisher data caused by any third party (except those third parties sub-contracted by RNM to perform services related to Publisher data maintenance and back-up for which it shall remain fully liable).
9.1 The Publisher may at any time during the Term issue a written request to RNM for the provision of Additional Services.
9.2 RNM shall be entitled to accept or reject the Publisher’s request for Additional Services in its absolute discretion. The Charges relating to such Additional Services shall be at the rate specified in the Order.
9.3 In the event the Publisher requires Additional Services, the provisions of this clause 9 shall apply to the exclusion of any other terms that the Publisher seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing, and all other warranties are excluded.
9.4 Any samples, drawings, descriptive matter or advertising issued by RNM, and any descriptions or illustrations contained in RNM’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Additional Services described in them. They shall not form part of this Agreement or have any contractual force.
9.5 Any quotation given by RNM shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.
9.6 Where RNM accepts an Order RNM shall supply the Additional Services to the Publisher in accordance with the Specification in all material respects. In some circumstances there will not be a Specification. Instead the parties will agree a basic outline of the Additional Services and will work together in good faith to scope out the deliverables as the project progresses.
9.7 RNM shall use all reasonable endeavours to meet any performance dates specified in the Specification, but any such dates shall be estimates only and time shall not be of the essence for performance of the Additional Services, unless as otherwise agreed in writing between the parties.
9.8 RNM reserves the right to amend the Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Additional Services, and RNM shall notify the Publisher in any such event.
9.9 RNM warrants to the Publisher that the Additional Services will be provided using reasonable care and skill.
9.10 The Publisher shall:
9.10.1 ensure that the terms of the Order and any information it provides in the Specification are complete and accurate;
9.10.2 co-operate with RNM in all matters relating to the Additional Services;
9.10.3 provide RNM with such information and materials as RNM may reasonably require in order to supply the Additional Services, and ensure that such information is complete and accurate in all material respects;
9.10.4 obtain and maintain all necessary licences, permissions and consents which may be required for the Additional Services before the date on which the Additional Services are to start.
9.11 All Intellectual Property Rights in or arising out of or in connection with the Additional Services (other than Intellectual Property Rights in any materials provided by the Publisher) shall be owned by RNM.
9.12 The Publisher shall pay the Charges within 30 days of the date of RNM’s invoice which shall be raised on completion of the Additional Services unless alternative payment terms are otherwise agreed by RNM and the Publisher.
9.13 RNM grants to the Publisher, or shall procure the direct grant to the Publisher of, a fully paid-up, worldwide, non-exclusive, royalty-free perpetual and irrevocable licence to copy and modify the output of any Additional Services including without limitation any Creative Works (excluding materials provided by the Publisher) for the purpose of receiving and using the Additional Services in its business.
9.14 The Publisher shall not sub-licence, assign or otherwise transfer the rights granted in this clause 9.
9.15 The Publisher grants RNM a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Publisher to RNM for the term of this Agreement for the purpose of providing the Additional Services to the Publisher.
9.16 The parties shall comply with their data protection obligations as set out in clause 7.
9.17 The provisions of clause 15 (Limitation of Liability) shall apply to the Additional Services.
10.1. At times AdTonos reserves the right to review The Publishers’ activity including online traffic validation and authentication, across all services.
10.2. In case of the failed and unverified authentication of online traffic, AdTonos may request evidence supporting the authenticity of the online impressions and playouts served on behalf of a publisher.
10.3. In case of an invalid traffic AdTonos reserves the right to terminate the traffic from a particular app, webside, domain or The Publisher.
10.4. In case of the failed validation for impressions or playouts served via RNM, AdTonos reserves the right to withhold and cancel the payment for fraudulent activity.
11.1 Where the Publisher has selected to purchase the Drumbeat Service from within the AdTonos Platform the following provisions shall apply:
11.1.1 SLA – The Publisher will select the level of service level agreement (“SLA”) it requires from within the AdTonos Platform. Each SLA being referred to as a “Tier”.
11.1.2 Installation –The Publisher will install and configure the Drumbeat Software on their architecture in accordance with the installation guide provided by RNM.
11.1.3 Monthly Subscription – The Publisher will pay such fees for its use of the Drumbeat Software as set out on the Drumbeat Website from time to time. Payment terms are 30 days. The level of fees will depend on the SLA selected by the Publisher. Each SLA shall entitle the Publisher to a defined number of monthly Playouts.
11.1.4 SLA Tiers – Each SLA Tier will contain some other monthly quoted features as follows:
(a) Engineering Hours as described in clause 10.3;
(b) AdTonos direct and programmatic commission as described in clause 10.4; and
(c) Self sales commission as described in clause 10.5.
11. 2 Fees for Playouts – The Publisher will pay to RNM fees by reference to the number of Playouts actually made by the Publisher using the Drumbeat Service. Such fees (as updated from time to time) and associated payment terms will be set out on the Drumbeat Website.
11.3 Engineering hours – In the event the Publisher requires any new feature development or custom amends to the Drumbeat Service or customisation works these shall be dealt with in accordance with clause 9 as Additional Works save that certain SLA Tiers will provide for a defined number of Engineering hours included within the monthly subscription. Engineering hours required outside of the selected SLA Tier will be subject to additional fees as provided in clause 9.
11.4 Direct and Programmatic Commission – Where RNM is granted direct and / or programmatic access to the Publisher’s Inventory, the Publisher will pay RNM commission in respect of sales of the Publisher’s Inventory concluded through RNM’s programmatic integrations or through RNM’s direct sales team. The commission will be calculated by RNM on a monthly basis for the whole month as a percentage if the sale price with the applicable percentage being stated in the selected SLA and paid in accordance with the payment terms stated in the selected SLA.
11.5 Self-Sales Commission – If the Publisher’s sales team concludes any sales of the Publisher’s Inventory the Publisher will pay RNM commission in respect of that sale calculated as a percentage of the sale price with the applicable percentage being as stated in the selected SLA. In this respect such commission will be calculated by RNM on a monthly basis for the whole month and paid on a monthly basis.
11.6 Real Time Information – the Publisher’s Dashboard will show real time data of sales progress using the Drumbeat Service.
11.7 Log Collection – The Publisher must either allow automatic log collecting (an optional feature of the Drumbeat Service) or provide logs manually upon RNM’s request
11.8 Service Credit – In the event RNM fails to meet the service levels specified in the selected SLA in any calendar month:
11.8.1 The Publisher shall become entitled to a Service Credit equal to 50% of monthly subscription for the calendar month in question provided that the failure did not arise due to a Publisher Cause or a cause outside RNM’s control.
11.8.2 The parties acknowledge that each Service Credit is proportionate when considering the Publisher’s legitimate interest to address and resolve an SLA failure as quickly as possible.
11.8.3 The provision of a Service Credit shall be an exclusive remedy for a particular Service Level failure.
11.8.4 A Service Credit shall be shown as a deduction from the amount due from the Publisher to RNM in the next monthly subscription invoice then due to be issued by RNM. RNM shall not in any circumstances be obliged to pay any money or make any refund to the Publisher.
11.9 Without affecting any other right or remedy available to it, either party may terminate the Drumbeat Service on giving no less than two months’ written notice to the other party.
11.10 Without affecting any other right or remedy available to it, either party may terminate the Drumbeat Service with immediate effect by giving written notice to the other party if:
11.10.1 the other party commits a material breach of any term of this Agreement and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
11.10.2 the other party takes or has taken against it (other than in relation to a solvent restructuring) any step or action towards its entering bankruptcy, administration, provisional liquidation or any composition or arrangement with its creditors, applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court), being struck off the register of companies, having a receiver appointed to any of its assets, or its entering a procedure in any jurisdiction with a similar effect to a procedure listed in this clause 10.10.2; or
11.10.3 the other party suspends or ceases, or threatens to suspend or cease, carrying on business.
11.11 RNM may terminate the Publisher’s use of the Drumbeat Service with immediate effect if there is a change of control of the Publisher within the meaning of section 1124 of the Corporation Tax Act 2010.
11. 12 Termination of the Drumbeat Service shall be without prejudice to the Publisher’s use of the AdTonos Platform and any other Monetisation Solutions which the Publisher can continue to use until otherwise terminated in accordance with this Agreement.
11.13 RNM shall use commercially reasonable endeavours to meet the SLA except for:
11.13.1 planned maintenance carried out during the maintenance window of 10.00 pm to 2.00 am UK time; and
11.13.2 unscheduled maintenance performed outside Normal Business Hours, provided that RNM has used reasonable endeavours to give the Publisher at least 6 Normal Business Hours’ notice in advance.
11.14 Save to the extent varied by this clause 10, all the provisions of this Agreement including obligations of the respective parties shall otherwise apply to the Drumbeat Service.
12.1 Where the Publisher has selected to utilise the YoursTruly Monetisation Solution from within the AdTonos Platform the Publisher should be aware that:
12.1.1 Interaction with a listener (if a listener decides to interact with an advertisement) occurs after the advertisement with YoursTruly call to action. In that case, this interaction overlaps further advertisements in the advertisement break. It may also overlap the radio programmes after an advertisement break.
12.1.2 During the above interaction, the radio is still playing but with a lowered volume.
13.1 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 Publisher Channels 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.
13.2 The 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 Publisher Channels 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.
13.3 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.
13.4 RNM represents and warrants that:
13.4.1 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 Materials (as applicable) in accordance with this Agreement; and
13.4.2 the RNM Materials or any pre-existing material included within the RNM Materials, or the exploitation by either the Publisher or RNM of the RNM Materials pursuant to the terms of this Agreement will not infringe any rights of any third party.
13.5 The Publisher represents and warrants that:
13.5.1 the Publisher Materials are its original work and have not been copied wholly or substantially from any other work or material or any other source;
13.5.2 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 Materials (as applicable) in accordance with this Agreement;
13.5.3 the Publisher Materials or any pre-existing materials included within the Publisher Materials, or the exploitation by either the Publisher or RNM of the Publisher Materials pursuant to the terms of this Agreement does not and will not infringe any rights of any third party; and
13.5.4 the Publisher is the sole legal and beneficial owner of the Publisher Materials.
13.6 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 12.1.
13.7 The 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 12.2.
13.8 The Publisher shall in respect of the Publisher Materials 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 Materials (as applicable) (an “Infringing Item”) infringes the Intellectual Property Rights or other rights of any third party (an “IPR Claim”).
13.9 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 the indemnified party, at its option (acting reasonably), promptly and at its own expense either:
13.9.1 procure for the indemnified party the right to continue using, possessing or receiving the Infringing Item free from any IPR Claim;
13.9.2 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
13.9.3 replace the Infringing Item with a non-infringing substitute item that complies with the indemnifying party’s obligations under this Agreement.
13.10 Liability under the indemnities given in clause 12.8 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:
13.10.1 as soon as reasonably practicable, give written notice of the Claim to the indemnifying party, specifying the nature of the Claim in reasonable detail;
13.10.2 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
13.10.3 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 party, so as to enable the indemnifying party and its professional advisers to examine them and to take copies (at the indemnifying party’s expense) for the purpose of assessing the Claim.
13.11 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.
13.12 No party grants or transfers to any other party by implication, estoppel or otherwise, any right, title, licence or interest in any Intellectual Property Rights otherwise than as specifically set out in this Agreement.
14.1 Where the Publisher has selected Sandstorm SDK within the AdTonos Platform the following provisions shall apply.
14.2 License.
14.2.1 Subject to the terms of this Agreement RNM grants the Publisher a limited, worldwide, royalty-free, non-assignable, non-exclusive, and non sublicensable license to use the Sandstorm SDK solely for integration into software applications owned or licenced to the Publisher or otherwise used by the Publisher or managed by a third party on behalf of the Publisher, to enable the Publisher to receive advertising from an End User.
14.2.2 The Publisher may not use the Sandstorm SDK to develop applications for other platforms or to develop another Sandstorm SDK. The Publisher is free to develop applications for other platforms, provided that this Sandstorm SDK is not used for that purpose.
14.2.3 The Publisher agrees that RNM or third parties own all legal right, title and interest in and to the Sandstorm SDK, including any Intellectual Property Rights that subsist in the Sandstorm SDK. RNM reserves all rights not expressly granted to the Publisher.
14.2.4 The Publisher may not use the Sandstorm SDK for any purpose not expressly permitted by this Agreement. The Publisher must not copy (except for backup purposes), modify, adapt, redistribute, decompile, reverse engineer, disassemble, or create derivative works of the Sandstorm SDK or any part of the Sandstorm SDK.
14.2.5 Use, reproduction and distribution of components of the Sandstorm SDK licensed under an open source software license are governed solely by the terms of that open source software license and not this Agreement.
14.2. 6 The Publisher agrees that the form and nature of the Sandstorm SDK that RNM provides may change without prior notice to the Publisher and that future versions of the Sandstorm SDK may be incompatible with applications developed on previous versions of the Sandstorm SDK. The Publisher agrees that RNM may stop (permanently or temporarily) providing the Sandstorm SDK (or any features within the Sandstorm SDK) to the Publisher or to users generally at RNM’s sole discretion, without prior notice to the Publisher.
14.2. 7 Nothing in this Agreement gives the Publisher a right to use any of RNM’s trade names, trademarks, service marks, logos, domain names, or other distinctive brand features.
14.2. 8 The Publisher agrees that it will not remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) that may be affixed to or contained within the Sandstorm SDK.
14.3 Use of the Sandstorm SDK by the Publisher.
14.3.1 RNM agrees that it obtains no right, title or interest from the Publisher under this Agreement in or to any software applications that the Publisher develops using the Sandstorm SDK, including any Intellectual Property Rights that subsist in those applications.
14.3.2 The Publisher agrees to use the Sandstorm SDK and write applications only for purposes that are permitted by this Agreement and any applicable law.
14.3.3 The Publisher agrees that if it uses the Sandstorm SDK to develop applications for general public users, it will protect the privacy and legal rights of those users. If the users provide the Publisher with user names, passwords, or other login information or personal information, the Publisher must make the users aware that the information will be available to its application, and the Publisher must provide legally adequate privacy notice and protection for those users. If the Publisher’s application stores personal or sensitive information provided by users, it must do so securely.
14.3.4 The Publisher agrees that it will not engage in any activity with the Sandstorm SDK, including the development or distribution of an application, that interferes with, disrupts, damages, or accesses in an unauthorized manner the servers, networks, or other properties or services of any third party.
14.3.5 The Publisher agrees that it is solely responsible for (and that RNM has no responsibility to the Publisher or to any third party for) any data, content, or resources that the Publisher creates, transmits or displays, and for the consequences of the Publisher’s actions (including any loss or damage which RNM may suffer) by doing so.
14.3.6 The Publisher agrees that it is solely responsible for (and that RNM has no responsibility to the Publisher or to any third party for) any breach of the Publisher’s obligations under this Agreement, any applicable third party contract or terms of service, or any applicable law or regulation, and for the consequences (including any loss or damage which RNM or any third party may suffer) of any such breach.
14.4 The Publisher’s Developer Credentials.
The Publisher agrees that it is responsible for maintaining the confidentiality of any developer credentials that may be issued to the Publisher by RNM or which the Publisher may choose itself and that the Publisher will be solely responsible for all applications that are developed under its developer credentials.
14.5 Third Party Applications.
14.5.1 If the Publisher uses the Sandstorm SDK to run applications developed by a third party or that access data, content or resources provided by a third party, the Publisher agrees that RNM is not responsible for those applications, data, content, or resources. The Publisher understands that all data, content or resources which it may access through such third party applications are the sole responsibility of the person from which they originated and that RNM is not liable for any loss or damage that the Publisher may experience as a result of the use or access of any of those third party applications, data, content, or resources.
14.5.2 The Publisher acknowledge that its use of such third party applications, data, content, or resources may be subject to separate terms between the Publisher and the relevant third party. In that case, this Agreement does not affect the Publisher’s legal relationship with these third parties.
14.6 Termination
14.6.1 In the event the Publisher’s use of the Sandstorm SDK (as a Monetisation Solution) is terminated by either Party in accordance with this Agreement the Publisher shall immediately cease its use of the Sandstorm SDK and any relevant developer credentials.
14.7 Disclaimer of Warranties
14.7.1 THE PUBLISHER EXPRESSLY UNDERSTANDS AND AGREES THAT ITS USE OF THE SANDSTORM SDK IS AT ITS SOLE RISK AND THAT THE SANDSTORM SDK IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND FROM RNM.
14.7.2 THE PUBLISHER’S USE OF THE SANDSTORM SDK AND ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SANDSTORM SDK IS AT ITS OWN DISCRETION AND RISK AND THE PUBLISHER IS SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH USE.
14.8 Indemnification
14.8.1 To the maximum extent permitted by law, the Publisher agrees to defend, indemnify and hold harmless RNM, its affiliates and their respective directors, officers, employees and agents from and against any and all claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys fees) arising out of or accruing from:
(a) the Publisher’s use of the Sandstorm SDK;
(b) any application the Publisher develops on the Sandstorm SDK that infringes any copyright, trademark, trade secret, trade dress, patent or other intellectual property right of any person or defames any person or violates their rights of publicity or privacy; and
(c) any non-compliance by the Publisher with this clause 13.
14.9 Changes to this License
14.9.1 RNM may make changes to the license granted in this clause 13 as it distributes new versions of the Sandstorm SDK. When these changes are made, RNM will make a new version of the license available on the website where the Sandstorm SDK is made available.
15.1 Confidential Information means all confidential information (however recorded or preserved) disclosed by a party or its Representatives (as defined below) to the other party and that party’s Representatives whether before, on or after the date of this Agreement, including but not limited to:
15.1.1 the existence and terms of this Agreement;
15.1.2 any information that would be regarded as confidential by a reasonable business person relating to:
(a) the business, assets, affairs, customers, clients, suppliers, or plans, intentions, or market opportunities of the disclosing party (or of any member of the group of companies to which the disclosing party belongs); and
(b) the operations, processes, product information, know-how, designs, trade secrets or software of the disclosing party (or of any member of the group of companies to which the disclosing party belongs);
15.1.3 any information developed by the parties in the course of carrying out this Agreement and the parties agree that:
(a) details of the AdTonos Platform, and the results of any performance tests of the AdTonos Platform, shall constitute RNM Confidential Information; and
(b) the Publisher’s data and Publisher Personal Data shall constitute Publisher Confidential Information;
15.2 Representatives means, in relation to a party, its employees, officers, contractors, subcontractors, representatives and advisers.
15.3 The provisions of this clause shall not apply to any Confidential Information that:
15.3.1 is or becomes generally available to the public (other than as a result of its disclosure by the receiving party or its Representatives in breach of this clause);
15.3.2 was available to the receiving party on a non-confidential basis before disclosure by the disclosing party;
15.3.3 was, is or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party’s knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party;
15.3.4 the parties agree in writing is not confidential or may be disclosed; or
15.3.5 is developed by or for the receiving party independently of the information disclosed by the disclosing party.
15.4 Each party shall keep the other party’s Confidential Information secret and confidential and shall not:
15.4.1 use such Confidential Information except for the purpose of exercising or performing its rights and obligations under or in connection with this Agreement (Permitted Purpose); or
15.4.2 disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this clause.
15.5 A party may disclose the other party’s Confidential Information to those of its Representatives who need to know such Confidential Information for the Permitted Purpose, provided that:
15.5.1 it informs such Representatives of the confidential nature of the Confidential Information before disclosure; and
15.5.2 at all times, it is responsible for such Representatives’ compliance with the confidentiality obligations set out in this clause.
15.6 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
15.7 A party may, provided that it has reasonable grounds to believe that the other party is involved in activity that may constitute a criminal offence under the Bribery Act 2010, disclose Confidential Information to the Serious Fraud Office without first informing the other party of such disclosure.
15.8 Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party’s Confidential Information other than those expressly stated in this Agreement are granted to the other party, or to be implied from this Agreement.
15.9 On termination or expiry of this Agreement, each party shall:
15.9.1 destroy or return to the other party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other party’s Confidential Information;
15.9.2 erase all the other party’s Confidential Information from computer and communications systems and devices used by it, including such systems and data storage services provided by third parties (to the extent technically and legally practicable); and
15.9.3 certify in writing to the other party that it has complied with the requirements of this clause, provided that a recipient party may retain documents and materials containing, reflecting, incorporating or based on the other party’s Confidential Information to the extent required by law or any applicable governmental or regulatory authority. The provisions of this clause shall continue to apply to any such documents and materials retained by a recipient party, subject to clause 16 (Termination).
15.10 No party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
15.11 Except as expressly stated in this Agreement, no party makes any express or implied warranty or representation concerning its Confidential Information.
15.12 The above provisions of this clause shall survive for a period of five years from termination or expiry of this Agreement.
16.1 Subject to Clause 15.2, 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:
16.1.1. special, indirect or consequential loss;
16.1.2 pure economic loss, costs or damages;
16.1.3 loss of anticipated savings;
16.1.4 loss of goodwill; and
16.1.5 loss or damage arising from loss, damage or corruption of any data.
16.2 The exclusions and limitation of liability set out in this Clause 15 do not apply to:
16.2.1 liability arising from death or injury to persons caused by negligence;
16.2.2 liability arising as a result of fraud; and
16.2.3 anything else which cannot be excluded or limited by law, to which no limit applies.
16.3 Save as expressly set out in this Agreement:
16.3.1 all warranties, representatives, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by the Applicable Law, excluded from this Agreement.
16.3.2 the Publisher assumes sole responsibility for the results obtained from the use of the AdTonos Platform and Monetisation Solutions.
16.3.3 the AdTonos Platform and Monetisation Solutions are provided to the Publisher on an “as is” basis.
16.4 Subject to clause 15.2, 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 Publisher’s Channels.
16.5 RNM’s total aggregate liability to the Publisher in contract to is (including negligence or breach of statutory duty), misrepresentation, retribution or otherwise, arising in connection with this Agreement shall be limited to the total Publisher’s Revenue Share during the 12 months immediately preceding the date on which the claim arose.
16.6 Nothing in this Agreement excludes the liability of the Publisher for any breach, infringement or misappropriation of RNM’s Intellectual Property.
17.1 Either party may terminate this Agreement and / or any particular Monetisation Solution:
17.1.1 at any time without cause with immediate effect at any time (subject always to clause 10.5 (Drumbeat Service termination));
17.1.2 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
17.1.3 if the other party ceases its business operations or becomes subject to insolvency proceedings.
17.2 Termination of any individual Monetisation Solution shall be without prejudice to any other Monetisation Solutions used by the Publisher which shall remain in full force and effect unless and until otherwise terminated in accordance with this Agreement.
17.3 Following termination of this Agreement for any reason all licenses granted hereunder shall immediately terminate and, subject to clause 16.5, RNM shall have the right to close down the Publisher’s Account.
17.4 Following termination of any Monetisation Solution for any reason all licences granted hereunder in respect of that Monetisation Solution shall immediately Terminate.
17.5 At RNM’s discretion, the Publisher shall either:
17.5.1 continue to stream any Playouts booked by the End Users for three (3) months following termination and RNM shall pay the Publisher the Publisher’s Revenue Share 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; or
17.5.2 cease to stream any such booked Playouts on the Publisher’s Channels immediately and RNM shall pay the Publisher its share of the Publisher’s Revenue Share 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 RNM’s Price List.
17.6 No user data will be saved or stored by RNM after termination of this Agreement however RNM will retain transactional data including without limitation the Publisher’s monthly revenues, Publisher’s Inventory, Monthly volumes, configuration services and sold campaign details, for up to 12 months following termination.
All Revenue Share Payments to the Publisher under this Agreement are expressed exclusive of VAT which shall be added to a Revenue Invoice at the then prevailing rate.
19.1 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.
19.2 Nothing in this clause shall limit the rights of the parties to commence or continue court proceedings in accordance with clause 28.
20.1 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.
20.2 Any notices required to be given to RNM by the Publisher under this Agreement must be sent to support@adtonos.com.
20.3 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.
21.1 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement.
21.2 If any provision or part-provision of this Agreement is deemed deleted under this clause the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
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.
23.1 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.
23.2 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.
23.3 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).
23.4 Subject to clause 13.9, no change shall be made to this Agreement except in writing signed by the duly authorised representatives of both parties.
23.5 No party shall have the right to terminate this Agreement except in accordance with the termination provisions set out in clause 16 and the parties hereby waive any common law rights they may have to terminate this Agreement including without limitation for repudiatory breach.
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.
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.
Neither party shall be in breach of this Agreement or 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.
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.
29.1 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.
29.2 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).
ToU take effect from November 1st 2022
ToU take effect from November 1st 2022
Last updated: October 7th 2022, 09:11 GMT
