Audiotrack Terms and Conditions

These terms and conditions govern the use by Users of the Audiotrack audio commercial distribution platform, owned and operated by Mediatel Audiotrack Limited. By using Audiotrack Users agree to be bound by these terms and conditions.

1. DEFINITIONS
   
   

   1.1 In these terms and conditions, unless the context otherwise requires, the following expressions have the following meanings:

   Administration Fee	means a payment of 25% of the Playout cost(s) as detailed in clause 6.4.
   Agency	means any person placing an Order, uploading a Commercial and/or booking an advertising campaign via the Audiotrack platform, including (without limitation) creative agencies, advertisers and production companies.
   Audiotrack	means the Audiotrack audio commercial distribution platform, owned and operated by Mediatel Audiotrack.
   Audio Platform	means an audio platform or other entity capable of communicating or transmitting a Commercial to the public over a communication network.
   Campaign Rules	means the objectives set by an Agency (and/or its third party client / media buyer) and uploaded to Audiotrack via the User Interface, relating to (among other things) the target number of impressions of a Commercial and/or the temporal or geographic elements of an advertising campaign, including any amendments to those objectives from time to time.
   Charges	means the charges payable for the use of Audiotrack as detailed in clause 6.
   Commercial	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).
   Instructions	means the distribution instructions and other information including Campaign Rules to accompany all Commercials uploaded by an Agency to Audiotrack via the User Interface.
   Intellectual Property	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.
   Mediatel Audiotrack	means Mediatel Audiotrack Limited whose registered office is at 130 Shaftesbury Avenue, 2nd Floor, London, United Kingdom, W1D 5EU.
   Order	means the submission of Instructions to Audiotrack via the User Interface to make available to relevant Audio platforms a Commercial.
   Permitted Formats	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.
   Playout	means the playing of a Commercial to the public on an Audio Platform.
   Playout Partner	means any operator of an Audio Platform or other person accessing, downloading or otherwise a Commercial via Audiotrack for the purpose of Playout.
   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 and as reflected in domestic legislation following the UK's exit from the European Union.
   User	means an Agency or a Playout Partner.
   User Interface	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

2. USER ORDERS AND DELIVERY OF COMMERCIALS
   
   

   2.1 To request the distribution of a Commercial to one or more Audio Platforms via Audiotrack the Agency 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 User 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 Each 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 (as applicable). 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 Agency's sole responsibility to ensure that any Commercials, Campaign Rules and other Instructions input by it are delivered to Audiotrack in sufficient time to meet the proposed broadcast schedules taking into account the relevant Playout Partner's requirements and the checking process carried out by Audiotrack described in clause 3.2. The Agency shall be solely responsible to check deadlines for submission of copy and/or any Instructions with the relevant Playout Partners so as to avoid surcharges.

   2.5 Each Playout Partner is solely responsible for (a) downloading/accessing relevant Commercials and Instructions made available via Audiotrack, (b) adding the applicable VAST tag to enable retrieval of the Commercial and (c) invoicing and collecting payment for all associated air time fees and other charges from the applicable 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.

3. 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 Agency. It shall be the Agency'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 (in accordance with clause 3.3) make the Commercial and relevant Instructions available for download to the applicable Audio Platforms via Audiotrack and where applicable notify such Audio Platforms. Where a Commercial is to be delivered via Mediatel Audiotrack's "Dynamic Copy Delivery" service, Mediatel Audiotrack shall make the Commercial available for serving to the applicable Audio Platform along with the associated VAST tag.

   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 each Playout Partner to download or otherwise access 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.

4. AUDIOTRACK USER INTERFACE
   
   

   4.1 The User shall submit all Orders, transmit or receive Instructions and upload or download Commercials (as applicable) via the Audiotrack User Interface.

   4.2 If the person accessing Audiotrack is a third party acting on behalf of a User, the User shall be solely liable for the use of its username, password and any Orders placed, Instructions given or received and Commercials uploaded, downloaded or otherwise accessed 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.

5. 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. CHARGES
   
   

   6.1 Mediatel Audiotrack will charge for and each Agency 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 Agency 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 Agency in respect of the distribution of Commercials within 14 days of the date on which the Commercial is first made available via Audiotrack (or, where clause 6.4 applies, within 14 days after receipt of the relevant purchase order). All Charges and any applicable Administration Fee (together with VAT) shall be payable within 30 days of the date of the invoice.

   6.4 Where the Agency's internal procedures require it to raise a purchase order prior to receiving an invoice, the Agency shall submit such purchase order to Mediatel Audiotrack within five days after the date on which the Commercial is first made available via Audiotrack. Failure to issue a purchase order within this time shall give rise to an Administration Fee payable by the User to Mediatel Audiotrack in accordance with the payment terms set out in clause 6.3.

   6.5 In the event that (i) any Audiotrack invoices remain unpaid for more than 14 days from the due date for payment, or (ii) where clause 6.4 applies, the Agency has not issued a purchase order to Mediatel Audiotrack within 10 days after the date on which the Commercial is first made available via Audiotrack then, without prejudice to any other remedies it may have, Mediatel Audiotrack shall be entitled on giving the Agency 24 hours' notice to suspend the Agency's account and all usernames and passwords issued to the Agency and/or suspend the distribution by the Agency of any Commercials via Audiotrack until such time as such invoices are fully paid or purchase orders are issued (as applicable). 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.

   6.6 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 Agency'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 Agency in accordance with the rate card.

   6.7 Mediatel Audiotrack will not charge the Agency 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 Agency or any of its officers, employees or sub-contractors or the failure of the Agency to deliver a Commercial in an uncorrupted and Permitted Format on time with the corresponding Instructions.

   6.8 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 or Playout Partner 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 in accordance with clause 3.3 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 Agency.

7. 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 Agency.

   7.2 Unless otherwise specified by the Agency in the Instructions, the Agency grants to Mediatel Audiotrack a limited, non-exclusive, non-revocable, transferable, sub-licensable, royalty-free, worldwide licence and/ or the necessary rights to:

   • 7.2.1 make the Commercials available to Audio Platforms for those Audio Platforms to communicate the Commercials to the public;
   • 7.2.2 provide an audio file of the Commercial to third party archives (including but not limited to the Radiocentre archive);
   • 7.2.3 use the Commercial and accompanying Instructions for the purpose of compiling and using intelligence regarding audio commercials including the Commercial; and/or
   • 7.2.4 sub-license and/ or assign the right referred to in clause 7.2.3 to third parties for the sole purpose of carrying out the activities referred to in that clause 7.2.3.

8. 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/Playout Partners on receipt of any Commercial or Instructions.

9. USER'S WARRANTY AND INDEMNITY
   
   

   9.1 The Agency warrants that:

   • 9.1.1 the Instructions submitted by it are in each case accurate and complete; and
   • 9.1.2 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.

   9.2 Each User warrants that:

   • 9.2.1 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; and
   • 9.2.2 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.

   9.3 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:

   • 9.3.1 infringes any copyright or other Intellectual Property rights or any privacy, publicity, personality and/or confidentiality right of any party; or
   • 9.3.2 infringes the Data Protection Legislation; or
   • 9.3.3 gives rise to any action for libel or defamation; or
   • 9.3.4 is contrary to any statutory or common law principle or infringes any other applicable rules or codes of practice; or
   • 9.3.5 is shown to be the cause of any loss or damage referred to in clause 2.6 above.

10. 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 (in the case of an Agency) or the accessing of any Commercial via Audiotrack (in the case of a Playout Partner) following any changes to these Terms & Conditions shall be deemed acceptance of the changes by the User.

11. TERMINATION
    
    

    11.1 Notwithstanding anything else contained herein, these Terms & Conditions may be terminated:

    • 11.1.1 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
    • 11.1.2 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 11.1.1 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); or
    • 11.1.3 by either party forthwith on giving notice in writing to the other if the other party shall have a receiver or administrative receiver appointed in respect 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.

12. EFFECTS OF TERMINATION
    
    

    12.1 Following termination of these Terms & Conditions for any reason, the User will have no right to use or access Audiotrack and Mediatel Audiotrack will be entitled (without liability) to cancel any further distribution of Commercials which were uploaded to Audiotrack prior to such termination.

    12.2 Subject to clause 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.

13. 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):

    • 13.1.1 any costs arising from such delay shall be borne by the party incurring the same; and
    • 13.1.2 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.

14. 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:

    • 14.1.1 any breach of its contractual obligations arising under these Terms & Conditions; and
    • 14.1.2 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 (i) fraud or fraudulent misrepresentation or (ii) death or personal injury resulting from its own or its employees' negligence shall not be limited.

    14.4 Subject to the limit set out in clause 14.6, 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, the aggregate liability of Mediatel Audiotrack to any User for loss arising out of, or in connection with, campaign underachievement and/or failure by a User to meet any objectives set out in the Campaign Rules in relation to a Commercial as a result of Mediatel Audiotrack's breach of these Terms & Conditions shall not exceed the Charges paid by the User in respect of the distribution of that Commercial, provided that Mediatel Audiotrack shall have no liability to the User for any loss arising directly or indirectly from (a) missing or misinterpreted information taken from media plans (or any action or inaction of a User in reliance on such plans), or (b) the timing and nature of setting the objective goals via Campaign Rules.

    14.6 Subject to the provisions of clauses 14.3, 14.5 and 14.7, the aggregate liability of Mediatel Audiotrack (whether such liability arises in contract, tort (including negligence) or otherwise 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 Agency as a direct result of the failure noted above.

    14.7 Subject to clause 14.3, Mediatel Audiotrack shall not be liable to the User in respect of any Event of Default (whether such liability arises in contract, tort (including negligence) or otherwise) for:

    • 14.7.1 loss of profits, loss of or damage to data, loss of anticipated savings or interest, loss of or damage to reputation or 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; or
    • 14.7.2 any loss arising from a failure or delay in performing its obligations under this Agreement to the extent that such failure or delay was caused or contributed to by an act or omission of the User.

    14.8 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.

    14.9 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.

    14.10 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.

15. 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.

16. 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.

17. 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, sub-license, 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. NOTICES
    
    

    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.

19. GOVERNING LAW
    
    

    19.1 These Terms & Conditions shall be governed by and construed in accordance with the laws of England and Wales.

20. DISPUTES
    
    

    20.1 Any dispute which may arise between the parties concerning these Terms & Conditions shall be determined as follows:

    • 20.1.1 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. The expert's decision shall (in the absence of clerical or manifest error) be final and binding on the parties and the expert's fees for so acting shall be borne by the parties in equal shares unless the expert determines that the conduct of either party is such that such party should bear all of such fees.
    • 20.1.2 in any other case the dispute shall be determined by the High Court of Justice in England and Wales and the parties hereby submit to the exclusive jurisdiction of that court for such purpose.