Audiotrack Terms and Conditions
These terms and conditions govern the use by you of the Audiotrack audio commercial distribution platform, owned and operated by Mediatel Audiotrack Limited. By using Audiotrack you agree to be bound by these terms and conditions.
1.1 In these terms and conditions, unless the context otherwise requires, the following expressions have the following meanings:
means the Audiotrack audio commercial distribution platform, owned and operated by Mediatel Audiotrack.
means an audio platform or other entity capable of communicating or transmitting a Commercial to the public over a communication network.
means the charges payable for the use of Audiotrack as detailed in clause 6.
means any audio commercial uploaded to Audiotrack for distribution via Audiotrack to relevant Audio platforms.
Data Protection Legislation
means the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).
means the distribution instructions and other information to accompany all Commercials uploaded by a User to Audiotrack via the User Interface.
means patents, utility models, rights to inventions, copyright and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use and protect the confidentiality of confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
means Mediatel Audiotrack Limited whose registered office is at 130 Shaftesbury Avenue, 2nd Floor, London, United Kingdom, W1D 5EU.
means the submission of Instructions to Audiotrack via the User Interface to make available to relevant Audio platforms a Commercial.
means the permitted formats for Commercials suitable for distribution via Audiotrack to relevant Audio platforms as indicated on the Audiotrack commercial upload interface from time to time.
Terms & Conditions
means these terms and conditions.
UK Data Protection Legislation
means all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
means any person placing an Order or uploading or downloading a Commercial via the Audiotrack platform or any Audio platform.
means the Audiotrack user interface.
1.2 In these Terms & Conditions references to the singular includes the plural and vice versa and reference to one gender includes all genders;
1.3 In these Terms & Conditions reference to a person includes a body corporate and an unincorporated association of persons; and
1.4 The headings in these Terms & Conditions do not affect their interpretation
- USER ORDERS AND DELIVERY OF COMMERCIALS
2.1 To request the distribution of a Commercial to one or more Audio platforms via Audiotrack the User must provide all Instructions to Mediatel Audiotrack by means of an Order, and must supply a copy of the Commercial to Mediatel Audiotrack via the Audiotrack commercial upload interface in at least one of the Permitted Formats.
2.2 The Instructions must be accurate, complete and contain all necessary distribution information for the Commercial, and should be provided via the User Interface.
2.3 The User will be provided with at least one username and password to enable it to access Audiotrack and to place Orders, submit or receive Instructions and upload or download Commercials. A User can request more than one username and password if its requirements so demand. The User shall be responsible at all times for ensuring the security and use of all usernames and passwords issued to it and shall be liable for all Commercials uploaded or downloaded, Instructions given or received and Orders placed using the usernames and passwords issued to it, including any Charges incurred and shall immediately inform Mediatel Audiotrack in the event that the User knows or suspects that any usernames and/or passwords issued to it by Mediatel Audiotrack have or may be misused.
2.4 It is the User's sole responsibility to ensure that any Commercials and Instructions input by it are delivered to Audiotrack in sufficient time to meet the proposed broadcast schedules taking into account the relevant Audio platforms’ requirements and the checking process carried out by Audiotrack described in clause 3.2. The User shall be solely responsible to check copy deadlines with the relevant Audio platforms so as to avoid late copy surcharges.
2.5 A User that is an Audio platform is solely responsible for downloading relevant Commercials and Instructions from Audiotrack and for invoicing and collecting payment for all associated air time fees and other charges from the applicable client or agency.
2.6 Each User warrants to Mediatel Audiotrack that no Commercial shall contain any virus, software, code or data that will or may cause corruption or any other form of damage to any element of the Audiotrack platform or any other user of Audiotrack and that all Commercials will comply with all relevant broadcasting and advertising standards and codes of practice.
- DISTRIBUTION OF COMMERCIALS TO AUDIO PLATFORMS VIA AUDIOTRACK
3.1 On receipt of a Commercial Mediatel Audiotrack will check that the Commercial is in a Permitted Format. If Mediatel Audiotrack considers that a Commercial is not in a Permitted Format or is corrupted it shall inform the User. It shall be the User's responsibility to reformat or repair the Commercial as necessary and to re-deliver the Commercial via the Audiotrack commercial upload interface.
3.2 Once Mediatel Audiotrack has checked and is satisfied that a Commercial is in a Permitted Format and accompanied by the related Instructions Mediatel Audiotrack shall make the Commercial and relevant Instructions available for download to the applicable Audio platforms via Audiotrack and where applicable notify such Audio platforms.
3.3 Provided that an Order is received via Audiotrack together with a Commercial in a Permitted Format and the relevant Instructions in a timely manner Mediatel Audiotrack shall use its best commercial efforts to make such Commercial available for distribution via Audiotrack in accordance with the corresponding distribution deadlines.
3.4 It shall be the responsibility of a User that is an Audio platform to download each Commercial and Instructions intended for it from Audiotrack.
3.5 Mediatel Audiotrack may retain digital copies of all Commercials delivered to it for so long as Mediatel Audiotrack shall determine from time to time.
- AUDIOTRACK USER INTERFACE
4.1 The User shall submit all Orders, transmit or receive Instructions and upload or download Commercial via the Audiotrack User Interface.
4.2 If the person accessing Audiotrack is acting on behalf of a third party User the third party User shall be solely liable for the use of its username, password and any Orders place, Instructions given or received and Commercials uploaded or downloaded on its behalf via Audiotrack.
4.3 The User agrees that in the event that the User is acting on behalf of a third party Mediatel Audiotrack shall be solely liable to the User under these Terms & Conditions in respect of the User's use of Audiotrack and Mediatel Audiotrack shall have no liability to such third party in respect of the use by the User of Audiotrack or any distribution carried out under Instructions from the User on behalf of such third party.
- USER SUPPORT
5.1 Mediatel Audiotrack offers the User support via telephone and email during normal business hours Monday to Friday in connection with the use of the Audiotrack platform. Contact details are available on the User Interface.
6.1 Mediatel Audiotrack will charge for and the User agrees to pay for the distribution of Commercials and Instructions on the basis of the Charges set out in Audiotrack's current rate card unless otherwise agreed in writing by Mediatel Audiotrack.
6.2 Mediatel Audiotrack reserves the right to update the rate card at any time and the charges which appear on any new rate card will apply to any Commercial distributed on behalf of the User as from the date stated on the new rate card unless otherwise agreed in writing by Mediatel Audiotrack.
6.3 Mediatel Audiotrack will normally invoice the User in respect of the distribution of Commercials within 14 days of distribution. All Audiotrack invoices together with VAT shall be payable within 30 days of the date of the invoice.
6.4 In the event that any Audiotrack invoices remain unpaid for more than 14 days from the due date for payment then without prejudice to any other remedies it may have Mediatel Audiotrack shall be entitled on giving the User 24 hours notice to suspend the User’s account and all usernames and passwords issued to the User and/or suspend the distribution by the User of any Commercials via Audiotrack until such time as such invoices are fully paid. In addition Mediatel Audiotrack shall be entitled to be paid interest on any sums outstanding from the due date for payment until payment is received at a rate of 3% per annum above the base lending rate of Barclays Bank PLC, London.
6.5 Any changes to Instructions received by Mediatel Audiotrack after distribution of any Commercial to which they relate will be ignored for the purpose of charging and Mediatel Audiotrack will be entitled to charge for the distribution actually carried out in accordance with the User's original Instructions even if a Commercial is not broadcast by an Audio platform because of late amendments to the Instructions. If additional Audio platforms are added to a campaign after the Commercial has originally been distributed then additional charges will be incurred by the User in accordance with the rate card.
6.6 Mediatel Audiotrack will not charge the User for any Commercials distributed in error or where the distribution was not made or occurred late as a result of any act, default or omission by Mediatel Audiotrack provided this was not as a result of any act, lateness, instruction, request, error or omission on the part of the User or any of its officers, employees or sub-contractors or the failure of the User to deliver a Commercial in an uncorrupted and Permitted Format on time with the corresponding Instructions.
6.7 For the avoidance of doubt Mediatel Audiotrack shall have no responsibility for the payment of any air time fees and charges due to any Audio platform including, without limitation, cancellation charges and late delivery surcharges unless such charges are due solely to a failure by Mediatel Audiotrack to deliver a Commercial on time in circumstances where such Commercial has been delivered to Audiotrack in an uncorrupted and Permitted Format on time and its Instructions have been duly delivered to Audiotrack via the User Interface on time by the User.
- RIGHT TO STORE, DISTRIBUTE AND USE THE COMMERCIALS
7.1 The parties agree that all rights, title and interest in the Intellectual Property in the Commercials are and shall remain the property of the User.
7.2 Unless otherwise specified by the User in the Instructions, the User grants to Mediatel Audiotrack a limited, non-exclusive, non-revocable, transferable, sub-licensable, royalty-free, worldwide licence and/ or the necessary rights to:
- make the Commercials available to Audio Platforms for those Audio Platforms to communicate the Commercials to the public;
- provide an audio file of the Commercial to third party archives (including but not limited to the Radiocentre archive);
- use the Commercial and accompanying Instructions for the purpose of compiling and using intelligence regarding audio commercials including the Commercial; and/or
- sub-licence and/ or assign the right referred to in Clause 7.2(c) to third parties for the sole purpose of carrying out the activities referred to in that Clause 7.2(c)
- SECURITY AND CONFIDENTIALITY
8.1 Mediatel Audiotrack will ensure that both the User Interface and the Audiotrack platform are operated with a view to maintaining the security and confidentiality of Commercials and Instructions. Mediatel Audiotrack will have no obligations or liability in respect of maintaining security or confidentiality and in particular but without limitation Mediatel Audiotrack cannot accept any liability in respect of any breach of security or confidentiality arising out of (i) the upload or download of a Commercial to/from Audiotrack and/or the submission or receipt of Instructions to the User Interface; or (ii) any error by the User or any third party in any Order or Instructions delivered to Mediatel Audiotrack; or (iii) the operations of the owner(s) of the telecommunications networks used by Audiotrack; or (iv) as a result of anything done or not done by Audio platforms on receipt of any Commercial or Instructions.
- USER'S WARRANTY AND INDEMNITY
9.1 The User warrants that:
- the Instructions submitted by it are in each case accurate and complete;
- it has the rights and power to perform its obligations under these Terms & Conditions and to grant the rights and/ or licences set out in these Terms & Conditions;
- in uploading the Commercial and Instructions, it is not in breach of any copyright or other Intellectual Property Rights and shall not infringe the moral rights of any other person;
- it shall at all times comply with its obligations under the Data Protection Legislation as regards the collection, storage, use and sharing of personal data;
9.2 The User agrees to indemnify Mediatel Audiotrack in respect of any loss, liability, claim costs or damages arising out of the receipt, distribution, broadcast or use of any Commercial or (as relevant) its Instructions or arising out of the fact that any Commercial or Instructions (or any part of them) or their receipt, distribution, broadcast or use:
- infringes any copyright or other Intellectual Property Rights or any privacy, publicity, personality and/or confidentiality right of any party; or
- infringes the Data Protection Legislation;
- gives rise to any action for libel or defamation; or
- is contrary to any statutory or common law principle or infringes any other applicable rules or codes of practice; or
- is shown to be the cause of any loss or damage referred to in clause 2.6 above.
- CHANGES TO TERMS & CONDITIONS
10.1 Mediatel Audiotrack reserves the right to make changes to these Terms & Conditions at any time. The receipt of any Order, Instructions or Commercial following any changes to these Terms & Conditions shall be deemed acceptance of the changes by the User.
11.1 Notwithstanding anything else contained herein, these Terms & Conditions may be terminated:
- by Mediatel Audiotrack forthwith on giving notice in writing to the User if the User shall fails to pay any sum due under the terms of these Terms & Conditions (otherwise than as a consequence of any default on the part of Mediatel Audiotrack) and such sum remains unpaid for 30 days after written notice from Mediatel Audiotrack that such sum has not been paid (such notice to contain a warning of Mediatel Audiotrack’s intention to terminate); or
- by either party forthwith on giving notice in writing to the other if the other commits any material breach of any term of these Terms & Conditions (other than any failure by the User to make any payment hereunder in which event the provisions of clause 11.1(a) above shall apply) and (in the case of a breach capable of being remedied) shall have failed, within 30 days after the receipt of a request in writing from the other party so to do, to remedy the breach (such request to contain a warning of such party’s intention to terminate);
- by either party forthwith on giving notice in writing to the other if the other party shall have a receiver or administrative receiver appointed of it or over any part of its undertaking or assets or shall pass a resolution for winding-up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction shall make an order to that effect or if the other party shall become subject to an administration order or shall enter into any voluntary arrangement with its creditors or shall cease or threaten to cease to carry on business.
- EFFECTS OF TERMINATION
12.1 Any termination of these Terms & Conditions (howsoever occasioned) shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision hereof which are expressly or by implication intended to come into or continue in force on or after such termination.
- FORCE MAJEURE
13.1 Notwithstanding anything else contained in these Terms & Conditions, neither party shall be liable for any delay in performing its obligations hereunder if such delay is caused by circumstances beyond its reasonable control (including without limitation any delay caused by any act or omission of the other party) provided however that any delay by a sub-contractor or supplier of the party so delaying shall not relieve that party from liability for delay except where such delay is beyond the reasonable control of the sub-contractor or supplier concerned. Subject to the party so delaying promptly notifying the other party in writing of the reasons for the delay (and the likely duration of the delay), the performance of such party’s obligations shall be suspended during the period that the said circumstances persist and such party shall be granted an extension of time for performance equal to the period of the delay. Save where such delay is caused by the act or omission of the other party (in which event the rights, remedies and liabilities of the parties shall be those conferred and imposed by the other terms of these Terms & Conditions and by law):
13.2 any costs arising from such delay shall be borne by the party incurring the same;
13.3 either party may, if such delay continues for more than 4 weeks, terminate these Terms & Conditions forthwith on giving notice in writing to the other in which event neither party shall be liable to the other by reason of such termination save that the User shall pay Mediatel Audiotrack all applicable outstanding charges and interest due under these Terms & Conditions that have accrued prior to such termination.
- LIMITATION OF LIABILITY
14.1 The following provisions set out Mediatel Audiotrack’s entire liability (including any liability for the acts and omissions of its employees and agents) to the User in respect of:
- any breach of its contractual obligations arising under these Terms & Conditions; and
- any representation statement or tortious act or omission including negligence arising under or in connection with these Terms & Conditions
14.2 Any act or omission on the part of Mediatel Audiotrack falling within clause 14.1 above shall for the purposes of this clause 14 be known as an ‘Event of Default’.
14.3 Mediatel Audiotrack’s liability to the User for death or personal injury resulting from its own or that of its employees’ negligence shall not be limited.
14.4 Subject to the limit set out in clause 14.5 below Mediatel Audiotrack shall accept liability to the User in respect of damage to the tangible property of the User resulting from the negligence of Mediatel Audiotrack or its staff, employees and sub-contractors.
14.5 Subject to the provisions of clause 14.3 above Mediatel Audiotrack’s entire liability in respect of any and all Events of Default shall be limited to damages of an amount equal to any air time cancellation charges and/or late copy surcharges incurred by the User as a direct result of the failure noted above.
14.6 Mediatel Audiotrack shall not be liable to the User in respect of any Event of Default for loss of profits, goodwill or any type of special, indirect or consequential loss (including loss or damage suffered by the User as a result of an action brought by a third party) even if such loss was reasonably foreseeable or Mediatel Audiotrack had been advised of the possibility of the User incurring the same.
14.7 If a number of Events of Default give rise substantially to the same loss then they shall be regarded as giving rise to only one claim under these Terms & Conditions.
14.8 The User hereby agrees to afford Mediatel Audiotrack not less than 30 days in which to remedy any Event of Default hereunder where such Event of Default is one capable of remedy.
14.9 Mediatel Audiotrack shall have no liability to the User in respect of any Event of Default unless the User shall have served notice of the same upon Mediatel Audiotrack within 2 working days of the User becoming aware of the circumstances giving rise to the Event of Default.
- WAIVER OF REMEDIES
15.1 No forbearance, delay or indulgence by either party in enforcing the provisions of these Terms & Conditions shall prejudice or restrict the rights of that party nor shall any waiver of its rights operate as a waiver of any subsequent breach and no right, power or remedy herein conferred upon or reserved for either party is exclusive of any other right, power or remedy available to that party and each such right, power or remedy shall be cumulative.
- ENTIRE AGREEMENT
16.1 These Terms & Conditions supersede all prior agreements, arrangements and understandings between the parties and constitute the entire agreement between the parties relating to the subject matter hereof.
- ASSIGNMENT AND SUB-CONTRACTING
17.1 Mediatel Audiotrack may at any time assign, sub-licence, mortgage, charge, delegate, declare a trust over or deal in any other manner with any or all of its rights under this Agreement.
17.2 Mediatel Audiotrack may subcontract or delegate any or all of its obligations under this Agreement to any third party.
17.3 The User shall not have the right to assign, transfer, mortgage, charge, sub-contract delegate or otherwise deal in whole or in part with its rights or obligations under these Terms & Conditions without the prior written consent of Mediatel Audiotrack and any assignment or transfer prohibited by this provision will be void.
17.4 Except as otherwise expressly provided in these Terms & Conditions, and subject to Clause 17.3 above, these Terms & Conditions are binding on each of the parties and their successors and permitted assignees. Each party’s successors and permitted assignees will be fully bound by these Terms & Conditions
18.1 Any notice to be given hereunder must be in writing and delivered by first class recorded delivery post to the party at its principal business address and shall be deemed served on the second business day after posting.
- GOVERNING LAW
19.1 These Terms & Conditions shall be governed by and construed in accordance with the laws of England.
20.1 Any dispute which may arise between the parties concerning these Terms & Conditions shall be determined as follows:
- if the dispute shall be of a technical nature then such dispute shall be referred for final settlement to an expert nominated jointly by the parties or, failing such nomination with 14 days after either party’s request to the other therefore, nominated at the request of either party by the President from time to time of the British Computer Society. Such expert shall be deemed to act as an expert and not as an arbitrator. His decision shall (in the absence of clerical or manifest error) be final and binding on the parties and his fees for so acting shall be borne by the parties in equal shares unless he determines that the conduct of either party is such that such party should bear all of such fees.
- in any other case the dispute shall be determined by the High Court of Justice in England and the parties hereby submit to the exclusive jurisdiction of that court for such purpose.
21.1 Notwithstanding that the whole or any part of any provision of these Terms & Conditions may prove to be illegal or unenforceable the other provisions of these Terms & Conditions and the remainder of the provision in question shall remain in full force and effect.
- THIRD PARTIES
22.1 Nothing in these Terms & Conditions shall confer on any person other than the parties to these Terms & Conditions any rights pursuant to the Contracts (Rights of Third Parties) Act 1999 except as expressly provided in these Terms & Conditions.