Broadcaster Terms of Service

BACKGROUND

Song Play Network has developed certain software applications and a platform which it makes available to broadcasters via the internet for the purpose of hosting radio station content, displaying details of online radio stations and distributing those stations by live steaming to end users, as directed by broadcasters. We agree to provide services subject to these terms and conditions, and the order details on our order form (together, “this agreement”).

The agreement will apply to any contract between us for the provision of our services to you, which will come into force when we email you to confirm acceptance of your order placed on our website. Please read these terms carefully and make sure that you understand them, before placing your order. These terms tell you who we are, how we will provide the service to you, how you and we may change or end the contract, what to do if there is a problem and other important information. Please note that before placing an order you will be asked to agree to these terms. If you refuse to accept these terms, you will not be able to place an order.

Your attention is drawn in particular to the following:

– this confirms your responsibility for the content you make available to end users by means of our service. You alone are responsible for all necessary rights clearances.

– this restricts our liability in relation to Internet Radio service.

You can contact us by writing to us at info@songplaynetwork.com .

THE PARTIES AGREE:

1 Definitions

• 1.1 In this Agreement:
  

2 Interpretation

• 2.1 In this Agreement:
  • 2.1.1. a reference to this Agreement includes its schedules, appendices and annexes (if any);
  • 2.1.2. a reference to a ‘party’ includes that party’s personal representatives, successors and permitted assigns;
  • 2.1.3. a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;
  • 2.1.4. a reference to a gender includes each other gender;
  • 2.1.5. the table of contents, background section and any clause, schedule or other headings in this Agreement are included for convenience only and shall have no effect on the interpretation of this Agreement; and
  • 2.1.6. a reference to legislation is a reference to that legislation as in force as at the date of this Agreement except to the extent that any such amendment, extension or re-enactment would increase either party’s liability under this Agreement.

3 Commencement and Term

• 3.1. This Agreement shall commence on the Commencement Date and shall continue throughout the Term unless before the end of the Term it is terminated in accordance with clause 18 (Termination) or is earlier terminated by agreement between the parties.
• 3.2. At the end of the Term, for Subscription Broadcasters only, the Agreement shall automatically renew without the requirement for notice by either party for successive periods each of 1 months’ duration, unless either party notifies the other party before the end of the then current Term requesting termination of the Agreement, in which case the Agreement shall terminate at the end of the then-current Term.
• 3.3. This terms of this Agreement shall also apply to any additional or changed Services agreed by the parties in the course of the Term, and shall apply to any renewal or extension of the Term.

4 Editorial Control

• 4.1. Subject to the terms of this Agreement, Broadcaster shall have sole editorial control over the Broadcaster Content. Except as specifically allowed in this Agreement, Internet Radio Ltd shall not modify, edit or revise any Broadcaster Content.

5 Rights Clearances

• 5.1. Broadcaster warrants and undertakes that it has, and shall at all times during the Term continue to have, obtained all necessary rights from third parties to provide the Broadcaster Content by means of the Hosting Services, including all necessary rights to communicate to the public, make available, broadcast and publicly perform musical compositions and sound recordings on the Website by means of the Hosting Service from any applicable rights owners, collecting societies, performing rights’ organisations or any other third party administering such rights.

6 Provision of the Services

• 6.1. Song Play Network shall make available the:
  • 6.1.1. Hosting Services as set out in the Order Form; and
  • 6.1.2. Support Services
• 6.2. The Broadcaster shall ensure that use of the Hosting Services is limited to the Broadcaster and its Authorised Users. The Broadcaster is responsible for ensuring compliance by the Authorised Users with the provisions of this Agreement.
• 6.3. The Broadcaster shall at all times during the Term comply with the Hosting Services Conditions.
• 6.4. If the Broadcaster fails at any time to comply with any of the Hosting Services Conditions in any, including a trivial respect, Song Play Network reserves the right without prior notice to suspend the Broadcaster’s access to or use of the Hosting Services either completely or to the extent Song Play Network in its sole discretion deems necessary to ensure a safe and secure manner of providing its services to its customers in general. Song Play Network shall be entitled to maintain the suspension until the Broadcaster is able to remedy its non-compliance with the Hosting Services Conditions and to demonstrate its future ability to comply with the Hosting Services Conditions to Song Play Network reasonable satisfaction.
• 6.5. Song Play Network may, at any time and without notice, temporarily discontinue or modify the Hosting Services or any part of them where this is necessary in Song Play Network sole discretion for the purpose of making modifications to the design, specifications, network connectivity or method of operation of the Hosting Services in order to maintain their compliance with current security or other technical requirements or standards.
• 6.6. In connection with any period of suspension or temporary discontinuance or modification of Song Play Network provision of the Services permitted by the terms of this Agreement:
  • 6.6.1. Song Play Network shall provide as much notice as is reasonably possible taking into account the urgency of the situation, its potential effect on Song Play Network ability to continue providing services to its customers generally and the need to maintain a safe and secure environment;
  • 6.6.2. Song Play Network shall not be liable for any loss or damage to the Broadcaster including any liability it may incur to third parties; and
  • 6.6.3. Song Play Network shall be entitled to charge and be paid all Fees until the end of the period of suspension, discontinuance or modification.
• 6.7. Song Play Network shall not be responsible or accept any liability for delays, failures or loss of or damage to data arising from the transfer of data over the internet or other communications networks or facilities other than those servers and facilities which are supplied by Song Play Network as part of the Hosting Services.
• 6.8. The Broadcaster acknowledges that the Broadcaster’s use of the Hosting Services and Song Play Network provision of the Hosting Services are subject to the limitations, delays and other technical issues which are inherent in the use of third-party networks or communications facilities including the internet.
• 6.9. Song Play Network shall include the Broadcaster Content in its directory of online radio stations on the Website during the Term. The placement and manner of such listing is at Song Play Network absolute discretion. Without prejudice to clause 5, the Broadcaster will not be listed in the ‘Featured’ listings on the site without providing evidence (deemed satisfactory by Song Play Network in its sole discretion) that any relevant music collection society licences have been obtained by the Broadcaster.

7 Exclusions from the Services

• 7.1. Song Play Network shall not be responsible for and the Broadcaster shall accept sole responsibility for the following matters:
  • 7.1.1. supervision of the Authorised Users and ensuring compliance by each of them with the Hosting Services Conditions;
  • 7.1.2. the inputting and maintenance of the Broadcaster Content and its security and integrity;
  • 7.1.3. the taking of back-ups of the Broadcaster Content; and
  • 7.1.4. the safety and integrity of all back-ups of the Broadcaster Content.
• 7.2. Song Play Network shall provide the Services in accordance with any laws applicable to the extent that they are general in nature or apply to a supply of services that are the same as or similar to the Services.
• 7.3. The Broadcaster shall be solely responsible for compliance of the Broadcaster Content with all laws applicable to it in its access to, receipt of and use made of the Services and shall further be solely responsible for compliance with all published policies, guidelines or industry codes of practice applicable to it but not having the force of law.

8 Changes to the Services

• 8.1. Song Play Network may by notice in writing make any changes to the Hosting Services which are necessary to comply with any law applicable anywhere or with any published policies, guidelines or codes of practice not having the force of law but which represent good practice.
• 8.2. Where Song Play Network would be required to make a change to the Hosting Services consequent on a change in law applicable anywhere in which comes into force at any time after the Commencement Date, then Song Play Network may instead terminate this Agreement by notice in writing of not less than 7 days, in which case the Agreement shall terminate at the end of that 7–day period.
• 8.3. Song Play Network may at any time change the Hosting Services Conditions or any part of them where this is desirable in Song Play Network sole discretion to comply with good practice and shall provide as much notice as reasonably practicable to the Broadcaster.
• 8.4. Song Play Network may at any time and without prior notice to the Broadcaster implement any Operational Change provided that neither the work of implementing the Operational Change nor the consequences of the Operational Change will have a directly adverse effect on the Broadcaster’s access to, receipt of or use of the Hosting Services. Song Play Network shall give the Broadcaster written notice of such alterations as soon as reasonably practicable.

9 EU Consumers – additional provisions

• 9.1. If you are a consumer resident in the European Union, you may cancel your order for the Services within 14 days after the day we email you to confirm we accept your order. If you cancel after we have started providing the Services, you must pay us for the services provided up until the time you tell us that you have changed your mind. If you wish to cancel your order in this way, please email us.
• 9.2. If you are a consumer resident in the European Union we are under a legal duty to supply products that are in conformity with this Agreement. Nothing in these terms will affect your legal rights.

10 Misuse of the Hosting Services

• 10.1. The Broadcaster is responsible for ensuring compliance by the Authorised Users with the terms of this Agreement (including the Hosting Services Conditions) and shall be fully liable for the acts or omissions of the Authorised Users.
• 10.2. The Broadcaster shall not use or allow the Hosting Services to be used in order to license, sell, rent, transfer, host, outsource or permit timesharing or the provision of service bureau facilities to any third party based on the Hosting Services.
• 10.3. The Broadcaster shall comply with any law applicable to it in its access to, receipt of or use of the Hosting Services (including any law applicable in any territory in which it specifies to Internet Radio Ltd that streams of the Broadcaster content be made available to end users).
• 10.4. The Broadcaster shall be responsible for any acts of unauthorised access to the Hosting Services where such access is gained by unauthorised use of an Authorised User’s account. The Broadcaster shall inform Song Play Network immediately on becoming aware of any unauthorised access, whether through an Authorised User’s account or otherwise.
• 10.5. The Broadcaster shall observe the Hosting Services Conditions and in particular shall not use the Hosting Services, or allow any Authorised User to use the Hosting Services, to create, store, access, transfer to any third party or otherwise distribute any Malware or any other material which:
  • 10.5.1. is unlawful;
  • 10.5.2. the Broadcaster has misclassified by genre;
  • 10.5.3. is or contains material which is harmful, obscene, defamatory, infringes any third party’s rights including any third party’s intellectual property rights;
  • 10.5.4. is or contains material which is of a harassing or offensive nature;
  • 10.5.5. contains sexually explicit or other offensive material;
  • 10.5.6. promotes the use of unlawful violence against a person or property; or
  • 10.5.7. is or contains material which is discriminatory based on race, origin, belief, sexual orientation, physical or mental disability, age or any other illegal category.
• 10.6. In the event of breach of clause 10.5, Song Play Network may disable the Broadcaster’s access to the Hosting Services or to any part of them which allows access to material which is causing a breach of clause 10.5. Clause 6.6 shall apply to such disabling of access as it applies in the case of any suspension or temporary discontinuance or modification of the Services under clause 6.6.
• 10.7. The Broadcaster may not perform any security testing of the Hosting Services or of any infrastructure or facilities whatsoever used to provide the Hosting Services, including network discovery, port/service identification, vulnerability scanning, password cracking, remote access testing or penetration testing.
• 10.8. The Broadcaster shall indemnify Internet Radio Ltd against all claims, losses, costs or expenses incurred by Song Play Network in consequence of any non-compliance by the Broadcaster with the provisions in clauses 10.3 to 10.5 or with the Hosting Services Conditions.

11 Fees

• 11.1. The Broadcaster shall pay the Fees set out in the Order Form including any recurring charges in respect of the provision of the Services.
• 11.2. Fees are payable at the following times:
  • 11.2.1. for Pay as You Go Broadcasters, on the earlier of the Commencement Date or the time indicated on the Order Form for that charge; and
  • 11.2.2. for Subscription Broadcasters, in respect of any recurring charges in respect of the Services, monthly in advance as from the Commencement Date.
• 11.3. Song Play Network may increase the Fees payable by Pay as You Go Broadcasters at any time. Song Play Network may increase the Fees payable by Subscription Broadcasters at any time with effect from the expiry of the first month after the Commencement Date provided it has given the Broadcaster at least 30 days’ written notice.

12 Warranties

• 12.1. Each of the parties warrants to the other that it has full power and authority to enter into and perform its obligations under this Agreement.
• 12.2. Song Play Network warrants to the Broadcaster that:
  • 12.2.1. it has the right, power and authority to grant the Broadcaster the rights set out in this Agreement and provide the Services;
  • 12.2.2. it will provide the Services using reasonable care and skill; and
  • 12.2.3. the access to, receipt of and use of the Services (including streaming of Broadcaster Content to end users) will not infringe the Intellectual Property Rights of any third party.
• 12.3. Song Play Network does not warrant that the Broadcaster’s use of the Hosting Services will be uninterrupted or error-free or that it will meet the Broadcaster’s specific requirements. Song Play Network does not warrant that the Hosting Services are or will be interoperable with or capable of working in conjunction with any other software or hardware, for which the Broadcaster take full responsibility.
• 12.4. The Broadcaster warrants and represents to Song Play Network that it has done such reasonable due diligence of the Services prior to the Commencement Date and takes sole responsibility for their suitability for its own intended purposes. The Broadcaster acknowledges that Song Play Network is making available to it a general service made available to its customers generally and that it is not making a bespoke service available specifically for the Broadcaster’s individual requirements
• 12.5. To the fullest extent permitted by law, and subject to any statutory rights Broadcaster may have as a consumer, no representation, warranty, assurance or undertaking (express or implied) is or will be made in respect of the Services.

13 Data protection

• 13.1. If and only to the extent that Song Play Network Processes any Personal Data for the Broadcaster as part of Song Play Network performance of this Agreement, the Broadcaster shall for all purposes be regarded as the Data Controller and Song Play Network shall for all purposes be regarded as the Data Processor.
• 13.2. It shall be the Broadcaster’s sole responsibility in the case of all Processing of Personal Data and the Broadcaster undertakes to Song Play Network that it shall:
  • 13.2.1. ensure that the Broadcaster is fully authorised and entitled at law to transfer the Personal Data to Song Play Network such that Internet Radio Ltd is lawfully authorised to Process the Personal Data for the Broadcaster;
  • 13.2.2. ensure that any third party consents have been obtained for such Processing of Personal Data;
  • 13.2.3. ensure that all such notifications to third parties have been made in respect of such Processing of Personal Data.
• 13.3. Song Play Network shall only undertake any Processing of Personal Data in accordance with the terms of this Agreement and in accordance with any reasonable instructions given by the Broadcaster from time to time. Where any such instructions given by the Broadcaster result or might result in any increase in costs for Song Play Network in providing any of the Services, Song Play Network is entitled to increase its Fees for those affected Services by such amount as will compensate it for the increase in costs. In order to increase its Fees, Song Play Network shall give reasonable prior notice in writing to the Broadcaster. The Broadcaster may change its instructions immediately on receiving such written notice provided that Song Play Network has not yet incurred any additional costs in seeking to comply with the Broadcaster’s instructions.
• 13.4. Each party shall take such technical and organisational measures as are reasonable in order to prevent unlawful Processing of Personal Data or any accidental loss of Personal Data.
• 13.5. The Broadcaster shall indemnify Song Play Network against all claims, losses, costs or expenses incurred by Internet Radio Ltd in consequence of any failure by the Broadcaster to comply with its obligations set out in this Clause 13 or its failure to comply with any other law applicable to the Processing of Personal Data.

14 Intellectual Property Rights

• 14.1. Song Play Network or its licensors shall retain ownership of all Intellectual Property Rights in the Services and in any materials created by Song Play Network in the course of providing the Services, whether those materials are provided to the Broadcaster or not.
• 14.2. The Broadcaster shall retain ownership of all Intellectual Property Rights in the Broadcaster Content.
• 14.3. Subject to the terms and conditions of this Agreement, Broadcaster hereby grants Song Play Network a worldwide non-exclusive fee-free licence for the term of the Agreement to transmit and re-transmit the Broadcaster Content. This licence shall include the right of end users to receive and play streams of the Broadcaster Content.
• 14.4. The Broadcaster hereby grants Song Play Network a worldwide non-exclusive fee-free licence to reproduce on the Website any trade marks used by the Broadcaster in respect of the Broadcaster Content.

15 Confidentiality

• 15.1. Each party agrees that it may use the other party’s Confidential Information only in the performance of its rights and obligations under this Agreement and that it shall not disclose the other party’s Confidential Information including all know­how, trade secrets, financial, commercial, technical, tactical or strategic information of any kind except in accordance with this clause 15.
• 15.2. Each party may disclose the other party’s Confidential Information to those of its employees, officers, advisers, agents or representatives who need to know the other party’s Confidential Information in order to perform the disclosing party’s rights and obligations under this Agreement provided that the disclosing party shall ensure that each of its employees, officers, advisers, agents or representatives to whom Confidential Information is disclosed is aware of its confidential nature and complies with this clause 15 as if it were a party.
• 15.3. Each party may disclose any Confidential Information required by law, any court, any governmental, regulatory or supervisory authority (including any regulated investment exchange) or any other authority of competent jurisdiction.

16 Liabilities – if you are a Consumer

• 16.1. If you are a consumer, we are responsible to you for foreseeable loss and damage caused by us. If we fail to comply with these terms, we are responsible for loss or damage you suffer that is a foreseeable result of our breaking this contract or our failing to use reasonable care and skill, but we are not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if either it is obvious that it will happen or if, at the time the contract was made, both we and you knew it might happen, for example, if you discussed it with us during the sales process.
• 16.2. We do not exclude or limit in any way our liability to you where it would be unlawful to do so. This includes liability for death or personal injury caused by our negligence or the negligence of our employees, agents or subcontractors; for fraud or fraudulent misrepresentation; for breach of your legal rights in relation to the Services.
• 16.3. We are not liable for business losses. We only supply the Services to you for domestic and private use. If you use the Services for any commercial, business or re-sale purpose we will have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity.

17 Liabilities – if Broadcaster is not a Consumer

• 17.1. Notwithstanding any provision in this Agreement, neither party excludes or limits any liability for:
  • 17.1.1. personal injury or death to the extent that results from the negligence of a party or any person for whom it is responsible at law;
  • 17.1.2. fraud or fraudulent misrepresentation;
  • 17.1.3. any breach of any obligations implied by section 12 of the Sale of Goods Act 1979 (SGA 1979) or section 2 of the Supply of Goods and Services Act 1982 (SGSA 1982); or
  • 17.1.4. any other liability to the extent the same cannot be excluded or limited by law.
• 17.2. Subject to clause 17.1, Song Play Network shall not be liable to the Broadcaster in respect of:
  • 17.2.1. any loss of profit, business, contracts, opportunity, goodwill, revenues, anticipated savings or similar loss, or
  • 17.2.2. any loss or corruption of software or data (including Broadcaster Content), or
  • 17.2.3. any claims or losses by third parties (and in each case, whether these losses are direct, indirect, special or consequential); and/or
  • 17.2.4. any indirect, special or consequential loss or damage (whether for loss of profit or otherwise).
• 17.3. Subject to clauses 17.1 and 17.2, Song Play Network maximum liability to the Broadcaster for all and any claims of whatever nature and whether based on contract, tort (including negligence), breach of statutory duty or otherwise arising out of or in connection with this Agreement or any activities related to this Agreement shall be limited in any 12 month period starting with the Commencement Date to a sum equal to the Fees paid or payable by the Broadcaster to Song Play Network in that 12 month period.
• 17.4. The Broadcaster takes full responsibility and shall accept all liability in respect of the use it makes of the Services and the results it achieves from them.

18 Termination

• 18.1. Either party may terminate this Agreement at any time by giving notice in writing to the other party if:
  • 18.1.1. the other party commits a material breach of this Agreement and such breach is not remediable;
  • 18.1.2. the other party commits a material breach of this Agreement which is not remedied within 14 days of receiving written notice of such breach;
  • 18.1.3. the other party has failed to pay any amount due under this Agreement on the due date and such amount remains unpaid within 14 days after the other party has received notification that the payment is overdue; or
  • 18.1.4. the other party takes any step or action in connection with its entering bankruptcy, administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction
• 18.2. If a party becomes aware that any event has occurred, or circumstances exist, which may entitle the other party to terminate this Agreement under this Clause 16, it shall immediately notify the other party in writing.
• 18.3. Termination or expiry of this Agreement shall not affect any accrued rights and liabilities of either party at any time up to the date of termination.

19 Consequences of termination

• 19.1. Upon termination of this Agreement for any reason:
  • 19.1.1. the obligation on Song Play Network to provide any Services and any rights and licences granted by Song Play Network under the Agreement shall immediately terminate (including, for the avoidance of doubt, any rights granted to Authorised Users to access the Hosting Services);
  • 19.1.2. the Broadcaster shall immediately pay all sums outstanding to Song Play Network;
  • 19.1.3. each party shall return to the other party and make no further use of any materials, software or other items whatsoever (or of any copies of them) belonging to the other party and/or provided by it pursuant to this Agreement; and
  • 19.1.4. Internet Radio Ltd may without liability destroy or otherwise dispose of any of the Broadcaster Content in its possession.
• 19.2. Termination of this Agreement for any reason is without prejudice to any rights or liabilities which have accrued prior to the date of termination.
• 19.3. Termination will not affect those provisions which by necessary implication are intended to survive termination of this Agreement including those provisions relating to confidentiality, intellectual property and liabilities.

20 Entire agreement

• 20.1. The parties agree that this Agreement constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter.
• 20.2. Each party acknowledges that it has not entered into this Agreement in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in this Agreement except in the case of fraudulent misrepresentation. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in this Agreement.

21 Other Important Terms

• 21.1. We may transfer this agreement to someone else. We may transfer our rights and obligations under these terms to another organisation.
• 21.2. You need our consent to transfer your rights to someone else (except that you can always transfer our guarantee). You may only transfer your rights or your obligations under these terms to another person if we agree to this in writing. We may not agree.
• 21.3. Nobody else has any rights under this contract (except someone you pass your guarantee on to). This contract is between you and us. No other person shall have any rights to enforce any of its terms.
• 21.4. If a court finds part of this contract illegal, the rest will continue in force. Each of the paragraphs of these terms operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining paragraphs will remain in full force and effect.
• 21.5. Even if we delay in enforcing this contract, we can still enforce it later. If we do not insist immediately that you do anything you are required to do under these terms, or if we delay in taking steps against you in respect of your breaking this contract, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date. For example, if you miss a payment and we do not chase you but we continue to provide the products, we can still require you to make the payment at a later date.
• 21.6. Which laws apply to this contract and where you may bring legal proceedings. These terms are governed by English law and you can bring legal proceedings in respect of the products in the English courts. If you live in Scotland you can bring legal proceedings in respect of the products in either the Scottish or the English courts. If you live in Northern Ireland you can bring legal proceedings in respect of the products in either the Northern Irish or the English courts.
• 21.7. Alternative dispute resolution. Alternative dispute resolution is a process where an independent body considers the facts of a dispute and seeks to resolve it, without you having to go to court. If you are not happy with how we have handled any complaint, you may want to contact the alternative dispute resolution provider we use.