This Publisher Audio Content Service General Terms and Conditions, (this “Agreement”) is made by and between TIM Adtech Ltd. d/b/a/ TRINITY (“TRINITY“) and the publisher set forth in the Insertion Order (“Publisher”). This Agreement supersedes any other agreement or insertion order between the parties. In the event of conflict between this Agreement and the Insertion Order, the terms of the Insertion Order shall prevail.
All capitalized terms used herein shall have the meaning ascribed to them in Section 14 to this Agreement or in the Insertion Order.
This Agreement governs the terms and conditions pursuant to which TRINITY’s services (“TRINITY’s Services”) shall include a feature (the “Streaming Feature”) to be embedded into Websites and Mobile Applications. The Streaming Feature will enable End Users to listen to Texts converted into Speech and streamed via the Streaming Feature following the displaying of either a (i) TRINITY Advertising Product or (ii) a Publisher Advertising Product (TRINITY Advertising Products and Publisher Advertising Products shall collectively be defined as “Advertising Products”), resulting from End User’s activation of the Streaming Feature. In addition to activating the Streaming Feature via an icon embedded alongside the Text displayed on Websites and Mobile Applications, TRINITY may place links in any website and/or mobile application that will redirect End Users to Websites and/or Mobile Applications displaying the Text and enable such End Users to access the Speech via the Streaming Feature.
Advertising Products displayed pursuant to the Streaming Feature, whether activated by End Users via the icon appearing alongside the Text or pursuant to a link (for example in Publisher’s channel in the music/audio platforms) that redirects End Users to such Websites and/or Mobile Applications displaying the Text, shall entitle the parties to receive Revenues based on the actual reporting system of TRINITY in accordance with the Pricing Model set forth in the Insertion Order.
TRINITY will provide the Service solely in the Geos and Domains agreed upon in writing between the parties. TRINITY reserves the right (but is not required or obligated) to withhold or refuse rendering the TRINITY Services on any Website or Mobile Application in case PUBLISHER uses the TRINITY’s Services not in accordance with the terms of this Agreement.
Publisher shall not engage in any deceptive or fraudulent activity as determined by TRINITY and verified by a third party fraud detector vendor, including, but not limited to, adding leads, clicks or impressions or inflate leads, clicks or impressions by fraudulent traffic generation such as bot/non-human traffic, stacked/hidden iframes, ad injection, impression laundering, clicks without referring URLs or not generated by End Users, extraordinary high number of repeat clicks and other forms or mechanisms not approved by TRINITY. Should Publisher allegedly engage in any deceptive or fraudulent activity, TRINITY may immediately revoke any and all right Publisher may have under this Agreement, including, without limitation, the right to receive Revenues derived from such fraudulent activity, and may immediately terminate Publisher’s account, in addition to any other remedies that may be available to TRINITY under any applicable law. Publisher acknowledges and confirms that the advertisers mediated by TRINITY are very unique and sensitive and thus failure by Publisher to comply with this Section 2 may cause TRINITY irreparable damages. Publisher therefore acknowledges the importance of its undertakings under this Section 2 and will fully comply with them.
- Each party shall pay the other party the Revenues within 60 days after the end of the relevant TRINITY’s Service month. No payments can be issued without a tax invoice and appropriate tax withholding exemption forms as applicable.
- In the event a party fails to pay Revenues to the other party in due time, an annual interest equal to 1% shall accrue on such outstanding balance.
- Each party reserves the right to make payments only when the amount owned to the other party exceeds US $500 (or until termination or expiration of this Agreement, if earlier).
- Notwithstanding the above, the parties hereby agree that the sole reason a party may demand an offset or a deduction from any payments the other party is entitled to under this Agreement will be due to fraudulent activity (and each party shall be entitled to an applicable Refund if payment for Fraudulent Traffic was already made) by providing the other party with a report from a third party fraud detection tool.
Publisher shall not Edit nor modify any of TRINITY Content Product.
Term and Termination
- Each party may terminate this Agreement without cause and for any reason, by providing 30 (thirty) days prior written notice to the other party. Notwithstanding the above, in case the Publisher uses the TRINITY Content Product not in accordance with the terms of this Agreement, TRINITY may terminate this Agreement immediately and with no notice to Publisher.
- Notwithstanding the above, without prejudice to any other rights or remedies which the parties may have whether under this Agreement or by any statute, regulation or by-law, either party may terminate this Agreement immediately without liability to the other party, by giving notice to the other party if: (i) the other party commits a material breach of this Agreement; (ii) the other party is deemed unable to pay its debts within the meaning of applicable laws; (iii) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party; (iv) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party; (v) a third party person becomes entitled to, or appoint a receiver over the assets of the other party; (vi) the other party is the subject of a bankruptcy petition or order; or (vii) the other party commences negotiations with creditors or makes a proposal for or enters into any compromise or arrangement with its creditors.
Representations and Warranties
- Publisher represents and warrants at all times throughout the Term that it is solely responsible for the consequences of handling, posting or publishing the Text and any other content used by it for the purpose of providing Publisher’s Services. Publisher further acknowledges and agrees that TRINITY does not endorse any of the Text or any opinion, recommendation, or advice expressed therein, and TRINITY expressly disclaims any and all liability in connection with the Text.
- TRINITY represents and warrants at all times throughout the Term: (i) it has the full authority to enter into this Agreement and to carry out and fully perform its obligations hereunder, and there is no restriction, limitation, or obligation, whether contractual, statutory or otherwise, which prevents it from maintaining its representations and fulfilling its obligations under this Agreement; (ii) it has obtained, maintains, and is the holder of all licenses, permits, certificates, and authorizations required by any applicable law, regulation, statutory or governmental authority, for it to lawfully operate its Services; (iii) it complies and shall continue to comply with all applicable laws, rules, and governmental (state, local, and community) and regulatory levies and requirements relating to it and the TRINITY Services.
Disclaimers; Limitation of Liabilities
- TRINITY DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE, THE INABILITY TO USE OR OPERATE, OR THE RESULTS OF THE USE OR OPERATION OF THE TRINITY CONTENT PRODUCT, CONVERSION OF TEXT INTO SPEECH, STREAMING FEATURE OR ANY OTHER TRINITY SERVICES (OR ANY PART THEREOF). THE TRINITY CONTENT PRODUCT, CONVERSION OF TEXT INTO SPEECH, STREAMING FEATURE AND ANY OTHER TRINITY SERVICES (AND ANY PART THEREOF), INCLUDING WITHOUT LIMITATION ANY CONTENT, DATA, PRODUCTS, MARKETING MATERIALS, REPORTS AND ANY INFORMATION RELATED THERETO, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF TITLE OR NON-INFRINGEMENT OR IMPLIED WARRANTIES OF USE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE. TRINITY IS NOT RESPONSIBLE FOR THE RESULTS OF PUBLISHER’S USE OF THE TRINITY CONTENT PRODUCT, THE SPEECH, THE STREAMING FEATURE OR ITS PUBLICATIONS OF CAMPAIGNS INCLUDING FOR ANY SUCCESS OR FAILURE THEREOF. TRINITY DOES NOT WARRANT OR REPRESENT THAT THE TRINITY CONTENT PRODUCT, THE SPEECH, THE STREAMING FEATURE AND/OR ANY OTHER TRINITY SERVICES UNDER THIS AGREEMENT WILL BE PROVIDED WITHOUT INTERRUPTIONS OR SHALL BE ERROR FREE. TRINITY DOES NOT ENDORSE ANY ENTITY, PRODUCT, SERVICE, SPEECH OR TRINITY CONTENT PRODUCT USED AND/OR TRANSMITTED IN CONNECTION WITH THE TRINITY SERVICES. THE USE OF THE TRINITY CONTENT PRODUCT, THE SPEECH, THE STREAMING FEATURE AND/OR ANY OTHER TRINITY SERVICES UNDER THIS AGREEMENT ARE AT PUBLISHER’S OWN RISK.
- TRINITY SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF OR DAMAGE TO DATA, LOSS OF ANTICIPATED REVENUES OR PROFITS, WORK STOPPAGE OR IMPAIRMENT OF OTHER ASSETS, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTIONS RESULTING FROM OR ARISING OUT OF THIS AGREEMENT. WITHOUT DEROGATING FROM THE FOREGOING, THE AGGREGATE LIABILITY WHICH MAY BE IMPOSED UPON TRINITY UNDER, ARISING OUT OF OR RELATING TO THE AGREEMENT SHALL NOT EXCEED THE AMOUNTS PAID BY TRINITY TO PUBLISHER DURING THE SIX-MONTH PERIOD IMMEDIATELY PRIOR TO THE TIME THAT THE CAUSE OF ACTION AROSE.
- Each party shall indemnify and hold harmless the other party, its assignees, agents, employees, officers, directors, shareholders, clients, acquirers and suppliers from and against any claims, actions, demands, losses or damages, including without limitation attorney’s fees, costs related to in-house counsel time, court costs and related witness fees, relating or arising from a party’s breach of any of its representations and warranties under this Agreement.
- Without limiting the aforesaid indemnification provisions, Publisher hereby agrees to defend TRINITY against any claim, demand, suit or proceeding made or brought against TRINITY by a third-party alleging that any of the Texts and/or TRINITY’s use of Publisher’s Websites and/or Mobile Applications are in violation of this Agreement, infringes or misappropriates the intellectual property rights of any third-party or violates applicable law.
Intellectual Property, Restrictions on Use and Maintenance
- The Advertising Product, TRINITY Content Product, Streaming Feature, Speech, the technology utilized by TRINITY to operate the TRINITY Services (and any part thereof), and copyrightable materials, graphics, text, images, users, leads ,specifications, methods, procedures, information, know-how, algorithms, data, inventions, patents and patent applications, technical data, interactive features, source and object code, files, interface and trade secrets of the TRINITY Content Product, Streaming Feature and Speech, and any trademarks, trade names, logos of TRINITY, whether or not registered or capable of being registered (collectively, “TRINITY Assets”), are owned and/or licensed to TRINITY, and are subject to copyright and other applicable intellectual property rights under domestic laws, foreign laws and international conventions. To the extent the rights to any such assets are held by Publisher, Publisher hereby licenses such rights to TRINITY.
- Except for the limited license rights expressly granted to Publisher pursuant to this Agreement, TRINITY retains all right, title and interest in and to the TRINITY Assets.
- TRINITY grants Publisher a personal, worldwide, royalty-free, non-assignable and non-exclusive license solely to use the TRINITY Assets solely as specifically permitted and under the terms set forth in this Agreement. Publisher may not copy, distribute, display, execute publicly, make available to the public, reduce to human readable form, decompile, disassemble, adapt, sublicense, make any commercial use, sell, rent, lend, process, compile, reverse engineer, combine with other software, translate, modify or create derivative works of the TRINITY Assets, either by itself or by anyone on its behalf, in any way or by any means, unless expressly permitted under this Agreement. Further, Publisher may not (i) violate the legal rights of others and/or transmit or otherwise make available in connection with the Advertising Product, TRINITY Content Product, conversion of Text into Speech, Streaming Feature and any other Services (and any part thereof) any virus, worm, Trojan Horse, time bomb, web bug, spyware, or any other computer code, file, or program that may or is intended to damage or hijack the operation of any hardware, software, or telecommunications equipment, or any other actually or potentially harmful, disruptive, or invasive code or component including code to monitor users without their prior consent; (ii) interfere with or disrupt the operation of the Advertising Product, conversion of Text into Speech, and/or Streaming Feature; and/or (iii) use the Advertising Product, TRINITY Content Product, Streaming Feature, and/or Speech in any way or context, that harms the goodwill or reputation of TRINITY.
- Publisher hereby grants TIM a worldwide, non-exclusive, , transferable license (with right to sub-license) to use, reproduce, distribute, prepare derivative works of, display, make available to the public, the Text in connection with the provision of the TIM Services, including without limitation, for converting the Text into Speech, and streaming the Speech either on Publisher’s Websites and/or Mobile Applications or by placing links in any website and/or mobile application that redirect the Streaming Feature to Publisher’s Websites and/or Mobile Applications. It is hereby agreed that TIM may, only subject to PUBLISHER’S prior written approval, place links in any website and/or mobile application that will redirect End Users to Websites and/or Mobile Applications displaying the Text and enable such End Users to access the Speech via the Streaming Feature.
- Publisher may only use the TRINITY Content Product, Streaming Feature, and/or Speech on Publisher’s Websites and/or Mobile Applications that generate Revenues in accordance with this Agreement.
- TRINITY has no obligation to provide upgrades, modifications, or new releases to the TRINITY Content Product under this Agreement.
Modification of Agreement
TRINITY reserves the right to change any conditions of this Agreement at any time, subject to a prior 7 (seven) days’ notice to Publisher. Change notices shall be sent to Publisher’s contact by email, and Publisher shall be responsible for complying with any changes to the Agreement. Failure of the Publisher to terminate the Agreement within those 7 (seven) days will constitute acceptance of the changes to this Agreement.
Non-Exclusive; No Publicity
The Advertising Service is provided on a non-exclusive basis, and TRINITY shall not be restricted from entering into any other agreements or conducting any business or discussions with any other parties at any time in its sole discretion. Publisher shall not make any public statement related to the Agreement without the TRINITY’s consent.
- Each party will treat as confidential all Confidential Information of the other party, will not use such Confidential Information except to exercise its rights and perform its obligations under this Agreement herein, and will not disclose such Confidential Information to any third party. Without limiting the foregoing, each of the parties will use at least the same degree of care it uses to prevent the disclosure of its own confidential information of like importance to prevent the disclosure of Confidential Information of the other party. Each party will promptly notify the other party of any actual or suspected misuse or unauthorized disclosure of the other party’s Confidential Information.
- Confidential Information excludes information that: (i) was in the public domain at the time it was disclosed or has become in the public domain through no fault of the receiving party; (ii) was known to the receiving party, without restriction, at the time of disclosure, as demonstrated by evidence in existence at the time of disclosure; (iii) is disclosed with the prior written approval of the disclosing party; or (iv) to the extent such disclosure is required by order or requirement of a court or by applicable law, but only if the receiving party provides prompt notice thereof to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure.
- The receiving party shall not be prevented from disclosing any or all of the Confidential Information to such of its directors, officers, employees, advisors, agents and consultants (the “Representatives”) who are required to have knowledge thereof for the purposes of carrying out this Agreement, provided that each such Representative is bound by obligations of confidentiality to the receiving party no less restrictive than those contained herein and provided that the receiving party shall remain liable for any act or omission by its Representatives that, if done by the receiving party, would be a breach of the terms of this Agreement.
- This Agreement (including the Insertion Order and Schedule A) constitute the entire agreement and understanding of the parties as to the subject matter hereof and there are no provisions, terms, conditions or obligations, whether oral or written, express or implied, other than those contained or referred to herein.
- No failure or delay by either party in exercising any right under this Agreement shall operate as a waiver of such right or extend to or affect any other or subsequent event or impair any rights or remedies in respect of it or in any way modify or diminish that party’s rights under this Agreement. A purported waiver or release under this Agreement is not effective unless it is a specific authorized written waiver or release.
- Nothing in this Agreement shall create or be deemed to create a partnership, an agency or a relationship of employer and employee between the parties.
- This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument. Each party to this Agreement may enter into this Agreement by signing any such counterpart.
- Each of the provisions contained in this Agreement shall be construed as independent of every other such provision, so that if any provision of this Agreement shall be determined by any court or competent authority to be illegal, invalid and/or unenforceable then such determination shall not affect any other provision of this Agreement, all of which other provisions shall remain in full force and effect.
- The provisions of Publisher Fraud, Representations and Warranties, Publisher’s Licenses to TRINITY, Disclaimers, Limitation of Liabilities, Indemnification, Intellectual Property, Restrictions on Use and Maintenance, Term and Termination, Confidential Information, and the miscellaneous sections, will survive the termination or expiration of this Agreement.
- This Agreement shall be governed by and construed in accordance with laws of the United Kingdom, without giving effect to the rules with respect to conflict-of-law. Any dispute arising out of, or relating to this Agreement, its interpretation or performance hereunder shall be resolved exclusively by the competent court of London, UK and each of the parties hereby submits exclusively and irrevocably to the jurisdiction of such court.
- Neither party may assign this Agreement without the prior consent of the other party (such consent not to be unreasonably withheld or delayed).
- “Confidential Information”- all information, analyses, compilations, studies, documents, books, papers, drawings, ideas, concepts, systems, processes, procedures, methods, models, sketches and all embodiments of any of the foregoing (whether communicated orally, in written form or stored in any other media) disclosed by one party to the other party regarding the disclosing party, regardless of whether the information is specifically marked or designated as “confidential” or not including, without limitation, information concerning the disclosing party’s business activities and strategies, financial information, customer and supplier lists, intellectual property, technology, research, marketing information or plans and information regarding the disclosing party’s products and services.
- “End User”– a person or entity on whose device Advertising Product is shown or an installation of Advertising Code has occurred pursuant to the activation of the Streaming Feature.
- “Mobile Applications” – mobile applications mutually agreed between the parties by e-mail.
- “Publisher Advertising Product” – images, video, text, sound, graphics, or any other Publisher content.
- “Refund” – chargeback or similar payment demanded from TRINITY or PUBLISHER (the “Charging Party”) by any third party, in connection with TRINITY’s Services rendered under this Agreement, and as a result of such demand TRINITY or PUBLISHER shall be required to repay such third party funds previously paid by it. the other party shall repay the Charging Party immediately upon demand the fee related to each Refund.
- “Revenue Share” means with respect to a Campaign for which payment is based upon a percentage of net Revenue, an amount equal to the net Revenue during the applicable calendar month, multiplied by the applicable Pricing Model as set forth in the Insertion Order.
- “Revenues” – the amounts earned and actually collected by a party in any applicable month in connection with Publisher Services and this Agreement, less: (a) any additional fee(s) payable by such party to any third party in connection with the Advertising Product made available to End Users or other third parties; (b) finance, VAT, excise or similar taxes legally collected;(c) any Refunds
- “Speech” – the audio media generated by TRINITY as a result of the conversion of the Text into audible speech as part of the Streaming Feature.
- “Text” – the text displayed on Websites and/or Mobile Applications to be converted into Speech by TRINITY through the Streaming Feature.
- “TRINITY Advertising Product” – images, video, text, sound, graphics, or any other TRINITY content.
- “Websites” – pages/websites mutually agreed between the parties by e-mail.
Schedule A – Prohibited Content
Tobacco, firearms, alcohol, pornography;
Racial, ethnic, political, hate-mongering or otherwise objectionable;
Indecent, vulgar, obscene, libelous, fraudulent, or that may be invasive of another’s privacy;
Libelous, defamatory, lewd and lascivious, excessively violent, bigoted or hate oriented behavior, gratuitous violence or profanity, harmful, threatening, abusive, harassing, or threatens physical harm to others;
Promotion of illegal substances or activities such as illegal gambling, illegal activities under the applicable Anti-Money Laundering laws and the Counter-Terrorism Financing laws, etc.
Software Pirating (including without limitation Warez, P2P, Bit torrent, Hotline, Cracking, etc.), Hacking or Phreaking, emulators, ROM’s, or illegal MP3 activity;
Any spoofing, redirecting, or trafficking from adult-related websites in an effort to gain traffic; and,
any other activity, information or content that is illegal, contrary to any industry code, indecent, obscene, defamatory, threatening, harass, discriminatory, in violation of third-party intellectual property or copyrights, privacy or publicity rights or deceptive practices