Term and General Condition
1. Introduction
These general terms and conditions (“T&Cs”) together with the order form (the “Order Form”) govern the contractual relationship between Audioboost S.r.l,, with registered office in Maglie (LE), via Scorrano 57, Tax Code and VAT No. IT05170040751, in the person of its legal representative pro tempore (the “Company” or “Audioboost”) and the Client, alternatively a publisher (the “Publisher”) or an Ad Network (the “Adnetwork”), whose details are indicated within the Order Form (jointly the “Client”), with respect to the provision of the services described below.
Hereinafter, the term the “Agreement” shall mean these T&Cs, inclusive of the entirety of the terms and conditions contained herein, the Annexes, any Order Forms signed by the Client, and any other annexes that are added or may be added to complete the Agreement itself at the will of the Company and the Client (the Company and the Client hereinafter are also referred to jointly as the “Parties” and individually as the “Party”).
If the Client is an Adnetwork, the latter undertakes to ensure that the Publisher respects and fulfills all the warranties and obligations set forth in the Agreement that the Adnetwork provides on behalf of the Publisher, expressly obligating itself in this regard also pursuant to and for the purposes of Article 1381 of the Italian Civil Code.
2. Definitions
As far as the interpretation of these T&Cs is concerned, terms with the first letter capitalized, whether singular or plural, shall be understood to have the following meanings:
“Adnetwork:
The party representing the Publisher in the management of the Properties.
“Ads.txt”:
the text string that makes explicit the platforms in use on the site.
“AdServer.”
The distribution technology of Advertising Spaces on Spoken Articles.
“Advertisers”:
Third parties other than the Parties who purchase Advertising Spaces from Audioboost.
“Advertising Collection Service”:
the activities carried out by Audioboost, also using its own network of collaborators, in its own name and on behalf of the Client, namely: (i) sale and marketing of the Advertising Spaces present in the Audioboost Marketplace in any technological mode; (ii) acquisition of advertising orders; (iii) commercial management of the related agreements with Advertisers; (iv) invoicing and collection of the related fees that will be paid directly to Audioboost.
“Audio Advertising”:
advertising revenues related to the sale of Audio Roll.
“Audio Impressions or Advertising Spaces”:
Advertising Spaces filled by Ad Roll regardless of the LTR.
“Audio Playback Service”:
the text-to-speech (STT)-based solution aimed at converting and eventually translating, synthesizing, correcting and reproducing in Spoken Article HTML content via Speakup-Article™ Suite;
“Audio Roll” or “Ad Roll”:
advertising materials made available by Advertisers according to
the standard technical specifications and conditions set by the AdServer.
“Audio-Seeding” or “A-Seeding”:
refers to the ability to integrate original Podcasts on demand into the Audioboost Player.
“Audioboost CMS” or “A-CMS”
(“Audioboost Content Management System”):
the main module of the Speakup-Article™ Suite, i.e., the platform that allows you to define the rules for synthesizing, classifying and publishing Spoken Articles from HTML content.
“Audioboost Marketplace”:
the aggregate set of Advertising Spaces managed by Audioboost – created through Speakup-Article™ – sold to Advertisers in Reservation or Programmatic mode and delivered through RTB or AdServer platforms according to prices and conditions set by Audioboost.
“Audioboost Player” or “A-Player”:
the Spoken Articles delivery Widget on the Website.
“Cloud” or “in Cloud”:
A wide range of services provided on demand to businesses and customers over the Internet. These services are designed to provide easy and convenient access to applications and resources without the need for in-house infrastructure or hardware.
“CMP” (“Consent Management Platform”):
The solution adopted by the Client for the management of automated flows of consent given by Users in compliance with the Privacy Regulations.
“Confidential Information”:
information of a technical and/or commercial nature relating to a Party and/or its collaborators and/or the activity it carries out or proposes to carry out that is communicated or made available to the other Party or its agents, including, but not limited to, designs, inventions, prototypes, samples, technical and information technology strategies, production processes applied and/or their stages, products, databases, know-how industrial, commercial, sales, business, marketing, and pricing development strategies, price and discount lists, costs, special supply conditions, suppliers’ and distributors’ price lists, as well as any and all information related to them, non-public financial information, creative/ideological lines, technical, commercial, and organizational knowledge regarding the respective companies’ business, organization, and structure.
“Content”:
any type of text compatible with the Speakup-Article™ Suite, including images, titles and any other items of which Client has full availability on the Properties for the sole purpose of the Services and of which Client is and shall remain the sole owner or licensee of any and all intellectual property rights.
“Dashboard”:
the consultation website, under Login, of the statistics inherent in: the volumes of Spoken Articles generated, published and listened to, the average listening time in quartiles and complete on the total of Spoken Articles generated and the individual Spoken Articles , the average duration of Spoken Articles generated, the duration of the individual Spoken Articles and the ranking of the most listened to Spoken Articles .
“Device”:
Any electronic device used to browse Websites and/or listen to Podcasts and Spoken Articles.
“Domain Name”:
the identification string that defines a scope of administrative autonomy, authority or control over the Internet. Domain names are formed by rules and procedures of the “Domain Name System” (“DNS”). Any name registered in the DNS is a domain name.
“Downtime”:
The period of unavailability of the A-CMS platform. Specifically, Downtime is classified as the time when the Audioboost API interface does not return the required Metadata, Audio player, or Podcasts as a result of a request formulated correctly with respect to the current technical documentation.
“eCPM” (“Equivalent Cost Per Thousand”):
the unit of measurement against which PPLM is compared as the economic value of Advertising Spaces according to market standards.
“Gross Revenue”:
The amount of revenue billed to Advertisers also mediated by Media Center through the Advertising Collection Service.
“HTML” (“Hyper Text Markup Language”):
The standard protocol for publishing Websites.
“Intellectual Property Rights”:
any and all intellectual and industrial property rights, including, but not limited to, patents, applied for or approved, copyrights, trademarks, sound logos, trade secrets, know-how, industrial information, and any similar or analogous rights provided for in any jurisdiction now and in the future without limitation, whether or not registered or being registered.
“Listeners”:
Website users who listen to a Spoken Articles regardless of how long they listen.
“LTR” (“Listen Through Rate”):
The average listening rate per 100 Audio Impressions;
“Measures”:
the Document “Linee guida cookie e altri strumenti di tracciamento – 10 giugno 2021” (Published in the Italian “Gazzetta Ufficiale” No. 163 dated July 9, 2021), Register of Provisions No. 231 of June 10, 2021 as well as the additional provisions, summary sheets, FAQs and guidelines of the Italian Data Protection Authority from time to time applicable to cookies and other tracking tools.
“Metadata”:
any descriptive information accompanying the Content that is useful for the purposes of the Speakup-Article™ Suite.
“MP3”:
the audio compression system that enables the reproduction of sounds through a reduced amount of data.
“Net Revenues”:
the amount of revenues net of costs (including but not limited to: agency and commission costs, agency analysis and studies, giveaways, discounts, technological and synthesizing costs, campaign recoveries granted by the Client for any reason, developments of new advertising formats).
“Page View” or “PV”:
A request to load a single Web page.
“Play List”:
the list of Spoken Articles linked to the Widget, navigable by the User who can choose a content preferred by him.
“Play” or “Stream”:
The number of times a Spoken Articles is listened to. This number is reported in the Audioboost Dashboard.
“Podcast”:
audio content posted on Websites and appropriate online platforms for dissemination and listening.
“PPL” (“Pay per Listen”):
The euro value of the individual Play on the Spoken Articles or Podcasts .
“PPLM” (“Pay per Listen per Thousand”):
the value in euros parameterized on 1000 Plays generated by Spoken Articles according to the Audioboost Dashboard.
“Privacy Regulations”:
Italian Legislative Decree No. 196 dated June 30, 2003, as amended and the Regulation (EU) No. 2016/679 dated April 27, 2016 (hereinafter: “GDPR”), as well as any other legislation on the protection of personal data applicable in Italy, already in force or that will come into force after the date of signing of this Agreement, including the Measures of the Italian Supervisory Authority issued in implementation of the Privacy Regulations.
“Properties”:
Websites corresponding to the domain names on which the Speakup-Article™ Suite is implemented.
“Publisher”:
the owner or operator of the Editorial Properties indicated and/or retrievable at the URLs specified in the Order Form, as well as the owner or licensee of any and all copyright in the Content and solely responsible for the Content.
“Report”:
information in aggregate form regarding Ad Inventory sales activities made available to Client by Audioboost through periodic mailings or the issuance of a Password for direct access to the Audioboost Marketplace.
“Reservation”:
the sales methods related to the common Insertion Order coming from Advertisers, direct or mediated.
“RPSA” (“Rate per Spoken Article”):
the value of the individual published Spoken Article identified as the sum of Ad Rolls distributed in it and related with Audio Seeding.
“RTB” (“Real Time Bidding”):
the technical protocol that, by connecting the supply and demand for Ad Spaces and managing their sale through real-time auction mechanisms, enables Advertisers to optimize the cost of buying Ad Spaces and publishers to maximize Ad Inventory sales revenues.
“Services”:
means the Advertising Collection Service and the Audio Playback Service together understood.
“Speakup-Article™ Suite”:
the Software-As-A-Service wholly owned by Audioboost as a set of technologies, utilities, processes, codes, content, aimed at creating, storing, classifying, publishing and distributing a Spoken Article on any Device, made available to third party owners of Websites and which may be subject to modifications, additions, enhancements or limitations at the discretion of Audioboost.
“Spoken Article”:
audio content generated through the Speakup-Article™ Suite.
“Streaming”:
the initiation of the delivery of a media file, either initiated by an End User, or initiated by a software function of the Speakup-Article™ Suite Audio Player, where the transfer of the media file is via streaming or any other format supported by the Audioboost platform. A stream can be whole or a fraction of a single media file, and there can be multiple streams in a single End User session. If the same media file, or part of it, is played multiple times by an End User in a single session or multiple sessions, each playback, although partial, will be counted as one stream. “On-Demand Streaming” is when Streaming occurs upon the specific choice and action of the User.
“Third Parties”:
business or technology counterparties with whom Audioboost may enter into agreements necessary for the performance of the Services or portions thereof, at its sole discretion.
“Traffiching”:
the operations of uploading, managing, monitoring and reporting audio campaigns sold directly by Audioboost.
“Uptime”:
the measure of how long the A-CMS platform is available to perform its primary function. Uptime is the opposite of Downtime.
“Web Browser”:
the web browser displays a web page on a monitor, TV, or mobile device.
“Web Page”:
The Web document drafted according to World Wide Web standards and the Web Browser.
“Website”:
a website, or simply site, is a set of related web pages served by a single domain name.
“Widget”:
the graphical-mechanical interface of the Speakup-article™ that placed on a Web Page allows the User to activate, navigate or deactivate the A-Player.
3. Preliminary arrangement
3.1 The Introduction constitutes an integral and substantial part of the Agreement, together with the following annexes (the “Annexes”):
- Annex A – Features of the Speakup-Article™ Suite, accessible at the following link: https://audioboost.com/service-level-agreement
- Annex B – Block list and denial of advertising, accessible at the following link https://audioboost.com/blocklist-rules
- Annex C – DPA, accessible at the following link: https://audioboost.com/dpa
3.2. In the Agreement, any reference to:
(i) a subject is to be understood as referring to any natural person, company, association (with or without legal personality) and any other legal person, consortia, as well as the State and any public law entity if they act as private law entities and not as public law authorities;
(ii) an annex, article, or subparagraph of an article is intended to refer to an annex, article, or subparagraph of an article of the Agreement.
3.3 The singular form includes the plural form and vice versa whenever the context requires it.
3.4 In case of discrepancy or contrast between what is provided in these T&Cs and what is provided in the Order Form or other annexes, the following order of precedence will operate: (1) Order Form; (2) Annexes; (3) T&Cs.
3.5 The Parties may periodically amend and/or supplement, by mutual agreement between them and in writing, the content of the Annexes, with the result that, following such amendments and/or additions, the new Annexes, duly signed, will replace for all purposes the previous version of the same.
3.6 The Parties acknowledge that invoices and other standard documentation used in connection with the performance of their obligations under the Agreement may contain terms that conflict with one or more of the terms set forth in the Agreement. If such a conflict arises, the terms of the Agreement shall prevail.
4. Subject of the Agreement
4.1 The Agreement governs the global terms and conditions, including non-EU countries, under which Audioboost grants to the Client the availability of the Speakup-Article™ Suite for the purpose of automatically generating Spoken Articles on its Properties referred to in the Order Form relating to the Content.
4.2 By signing these T&Cs, the Company undertakes to perform towards the Client the Service according to the technical specifications set out in the relevant Order Form.
4.3 In return for the performance of the Services, the Client agrees to pay to the Company the fee indicated within each Order Form in accordance with the terms and timeframes provided therein.
5. Description of the Audio Playback Service
5.1 Audioboost is a company operating in the audio industry through the development of solutions for the creation, preservation and distribution of audio content so that everyone can access it from the Client’s Website(s) (“Properties”) via multiple technical modes and protocols. Specifically, Audioboost has developed the Speakup-Article™ Suite, through which it (i) hosts generated Spoken Articles in its own cloud called the “Audioboost Library,” (ii) edits and classifies such Spoken Articles through its own A-CMS technology, (iii) publishes such Spoken Articles exclusively on the Client’s Properties through its own A-Player, all against a specific license to use the content selected by the Client for which it grants unquestionable and non-exclusive permission to Audioboost to compose the Audioboost Library for the sole purpose of the Services.
5.2 The Client declares that it is interested in the Services to make the Content transformed into Spoken Articles or the Audioboost Library accessible to its audience (“Users”) through its Properties, as well as in their monetization through the Audioboost Marketplace also through the sale of advertising space connected or otherwise combined with them as part of the Advertising Collection Service (“Advertising Spaces”).
5.3 The Client grants Audioboost, in relation to the Advertising Spaces available in the Audioboost Marketplace and generated after integration of the Widget on its Web Pages, the possibility to sell to Advertisers exclusively and in all countries, both EU and non-EU, the Advertising Spaces in compliance with the local regulations in force in each country.
5.4 To this end, the Client hereby sub-licenses to Audioboost, for as long as the Agreement is effective between the Parties, the rights to use the Content and Metadata necessary for the sole purposes of the Speakup-Article™ Suite for the publication and broadcasting of the same in Podcast Streaming mode on the Properties, any and all further use being expressly excluded. Specifically, the rights of use of the Content and Metadata sub-licensed to Audioboost by Client are as follows:
- the right to make available, only through the Properties and only for the Users’ fruition, for private purposes, the Spoken Articles on Demand mode or other assimilable mode, however to be specified between the Parties during the performance of the Service, so that each User may have access to them from the place, with the Device and at the time chosen from time to time;
- the right to perform on the textual material and the Metadata any technical process deemed necessary by Audioboost through its exclusive medium, all temporary reproductions, fixations, encodings and operations as may be useful or necessary for the purposes of the Speakup-Article™ Suite, provided that they do not alter the Content in its meaning and form;
- The right to affix and/or combine any protection and/or Digital Right Management (DRM) systems to the Spoken Articles;
- the right to train vocal patterns for the sole purpose of improving the quality of Spoken Articles.
5.5 The Client will not have direct availability of the Spoken Articles that will be generated in Streaming mode on the Properties through the Speakup-Article™ Suite. Said Spoken Articles are in the exclusive availability of Audioboost, for the duration of the Agreement. In this regard, Audioboost agrees on an ongoing basis, for the duration of the Agreement, to:
- keep Spoken Articles available in streaming mode in the A-CMS;
- ensure the Setup agreed upon in the specifications opted by the Client;
- acknowledge that the availability to the Client of the rights to use the content referred to in Article 5 relating to certain Podcasts may cease during the term of the Agreement. Such loss of availability will result in the necessary removal of the same from the Properties, upon prompt notice to Audioboost and without this being considered a default on its part or grounds for termination of the Agreement. Validation and publication of Podcasts on the Properties are at the sole discretion of the Client and under its control and responsibility to third parties.
5.6 Audioboost reserves the right to approve or disapprove in its sole discretion Websites entering the Audioboost Marketplace belonging to the Client.
5.7 The Parties shall have no obligation or liability to the other Party if the dispute occurs after a period of 1 year from the date when the other Party knew or could have known of the facts on which the claim is based, unless otherwise provided by applicable local law.
5.8 If this Agreement is entered into between Audioboost and the Adnetwork on behalf of the Publisher, the Parties agree and acknowledge the following:
- except as provided in paragraph (b) of this Article, the Adnetwork agrees to comply with the warranties and indemnities set forth in Article 8 of this Agreement, assuming in full the Publisher’s warranty responsibilities and obligations under this Agreement;
- In order for the Publisher to be obliged to directly guarantee to Audioboost compliance with the warranties and indemnities referred to in Article 8 of this Agreement, the Publisher must confirm its adherence by selecting a special flag visible at the time of the first access to the platform, by which it declares to accept the conditions set forth in the warranty agreement accessible at the following link www.audioboost.com/publisher-guarantees. The Adnetwork acknowledges that Audioboost will be free not to initiate the Services with respect to the Publisher who has not completed this acceptance procedure, without incurring any penalty or liability to the Adnetwork and/or the Publisher.
- Methods of performing the Advertising Collection Service
6.1 The Client shall have no claim against Audioboost to achieve any kind of result in terms of the sale of Advertising Spaces featured in the Spoken Articles. Therefore, the Parties acknowledge and agree that if all or part of the Advertising Spaces remain unsold, Audioboost will not incur any liability to the Client.
6.2 It is expressly understood between the Parties that:
- Audioboost shall perform the Advertising Gathering Service, in accordance with the terms and conditions that, from time to time, shall be agreed upon between the Advertisers and Audioboost, without the Client being entitled to make any kind of claim and/or demand with respect to anything agreed upon between Audioboost and each Advertiser;
- all terms and conditions of sale of Advertising Spaces vis-à-vis Advertisers, including the applicable rates for the sale of each Advertising Space, shall be determined solely and exclusively by Audioboost, based on the terms and conditions of sale from time to time set forth in Audioboost’s price lists without any claim being made by the Client in this regard, including with respect to any discounts granted to Advertisers.
6.3 The Parties expressly agree that Ad Rolls may never have as their content the products or services specified on https://audioboost.com/blocklist-rules.
6.4 In order to enable Audioboost to perform the Advertising Collection Service, Client agrees to:
- Have a CMP that is up-to-date with market standards and as similar in functionality and services as possible to market benchmarks (such as IAB Europe’s GDPR Transparency & Consent Framework, in the version currently compatible with market standards);
- Ensure the implementation of the Ads.txt as provided by Audioboost.
- Audioboost’s warranties and indemnities
7.1 Without prejudice to further obligations under the Agreement, in performing the Services, the Parties acknowledge and agree to the following.
7.2 Throughout the term of the Agreement, Audioboost declares and warrants the following:
- to be the holder of all rights necessary in order to enter into and fully and timely execute the Agreement;
- to make Spoken Articles available to Users on an ongoing basis in accordance with the sub-license granted to Audioboost;
- not to use the Content in a manner that is offensive, insulting, or injurious to the reputation and honor of the Client;
- not to publish on the Properties and not to cause third parties to publish material that is contrary to applicable law (including, without limitation, advertising regulations) or that is in any case indecent, obscene, pornographic, that glorifies violence or constitutes a crime, that infringes the rights (including relating to intellectual or industrial property) of third parties or is otherwise unlawful or excluded as per Exhibit B. In the event that the Advertiser’s material does not comply with the above or is in any case unwelcome to the Client, Audioboost hereby undertakes as of now to remove the said material no later than 24 (twenty-four) hours from the Client’s notification, giving written confirmation to the Client;
- to pay the Client the fees specified in the Order Form.
- Client’s warranties and indemnities
8.1 Without prejudice to further obligations under the Agreement, in performing the Services, the Parties acknowledge and agree to the following.
8.2 Throughout the term of the Agreement, the Client declares and warrants the following:
- to be the holder of all rights necessary in order to enter into and fully and timely execute the Agreement;
- where applicable, to have the lawful and full ownership and availability of the HTML Content, as well as all related rights of use, publication, distribution, dissemination and economic exploitation necessary for the publication of the same on the Properties, in accordance with all applicable regulations (by way of example but not limited to, intellectual property and copyright regulations), including those of non-EU countries where the Content will be published;
- where applicable, to have sought and obtained, from each rightsholder (including, without limitation, authors, music publishers, producers and licensors of the Audiovisuals), any consent or authorization necessary for the publication, distribution or use of the Content in accordance with the purposes of the Agreement and in compliance with all applicable laws;
- that the rights to use the Content and Metadata granted to Audioboost are also valid and recognized in non-EU countries, in accordance with local regulations, and that the license granted to Audioboost is also valid and enforceable in non-EU countries.
8.3 Any fees that may be due to the rights holders or their agents, including in non-EU countries, as a result of the Users’ fruition of the Spoken Articles (by way of example but not limited to: copyright and related rights management companies, etc.) are the sole responsibility of the Client. The Client is obliged to indemnify Audioboost against any non-conformity of the aforementioned fees.
8.4 Pursuant to the Client’s representations and warranties under the Agreement and to the extent of the rights subject to sublicensing, the Client agrees to guarantee, indemnify and hold harmless Audioboost, for the duration of the Agreement, with respect to any claim that is made against the Company by any third party in connection with the Spoken Articles or otherwise the provision thereof to Users.
8.5 With respect to the generation of Spoken Articles through the Speakup-Article™ Suite, the Client warrants that:
- the Spoken Articles generated (i) do not and will not violate any applicable legislation or any distinctive sign, intellectual property right, industrial or other right of third parties; (ii) do not contain obscene and/or blasphemous content and comply with the principles of public order and morality, including those recognized internationally;
- will not act in a fraudulent manner (by way of example but not limited to, will not generate and will not allow third parties to generate fraudulent listening or otherwise invalid Play);
- will not prepare copies of the Spoken Articles in the A-CMS with any technology other than what is prepared by Audioboost;
- Will not delete, modify, damage or alter any copyright protection technology or any mechanism embedded in or associated with the Content;
- will not authorize third parties or commit any act that deliberately encourages or induces the unlawful reproduction of Content.
9. Exclusive right
9.1 With respect to the Services, the Parties acknowledge and agree that the assignment to perform the Service shall be deemed to be made in favor of Audioboost exclusively with respect to the Properties, without prejudice to pre-existing services of which Audioboost has already become aware and which it expressly approves in writing.
9.2 Subject to the express written approval of Audioboost, the Client shall not use for the Audio Playback Service any parties other than Audioboost, even if they have additional features and variations not available in the Speakup-Article™ Suite.
9.3 The exclusivity bond operates at the sole expense of the Client. Audioboost remains free to offer its services to other Publishers or Adnetworks.
10. Intellectual and Industrial Property
10.1 The Client is and shall remain the sole owner of all Intellectual Property Rights in the Content. Notwithstanding the foregoing, and solely for the purpose of the operation of the Speakup-Article™ Suite or the Agreement in general, the Client grants Audioboost a non-exclusive, revocable license over the Content for the duration of the Agreement to Audioboost for the purpose of the realization of the Podcasts through the Speakup-Article™ Suite by Audioboost. It is understood between the Parties that all use of the Content beyond what is necessary for the fulfillment of the Contract is expressly prohibited.
10.2 The Parties acknowledge and agree that each Party will remain the owner of its own Intellectual Property Rights and that, except as expressly provided in the Agreement, no provision of the Agreement shall be construed as a license or assignment of one Party’s Intellectual Property Rights to the other.
10.3 Except as provided in the Agreement, each Party is not authorized to use the Intellectual Property Rights without the prior written consent of the other Party.
10.4 In order to improve audio quality, the Client allows Audioboost to anonymously and decodedly use data streams (“datasets”) for the purpose of training phonetic and/or linguistic models, as well as generating reworkings of them for research and product development purposes.
10.5 If this Agreement is entered into between Audioboost and Publisher, unless otherwise agreed to in writing between the Parties, Publisher authorizes Audioboost to use, on a non-exclusive basis and free of charge, its brand, logos and other distinctive marks for promotional and marketing purposes. Such use includes, but is not limited to, publication in promotional materials, company presentations, Audioboost’s website and social channels for the purpose of illustrating partnerships and promoting Audioboost’s services. Audioboost agrees not to alter Publisher’s logos and distinguishing marks, adhering to their usage guidelines where provided.
10.6 If this Agreement is entered into between Audioboost and Adnetwork on behalf of Publisher, unless otherwise agreed in writing between the Parties, Adnetwork warrants that Publisher has granted the necessary authorization to Audioboost for the use of its brand, logos, and distinctive marks under the terms set forth in Section 10.5 above.
- Accounts
11.1 Audioboost will allow the Client to access the Dashboard through the provision of a dedicated account (user and password). Through the Dashboard, the Client will receive information regarding the KPIs of its Spoken Articles and, as soon as it is available, the relative statement of the previous month bearing the amount of the fees accrued by the Client for the sale of Advertising Spaces to Advertisers.
11.2 The Client acknowledges and agrees that, in the event of unavailability in Dashboard, reporting shall be promptly provided by Audioboost on a subsidiary basis through periodic reports transmitted by e-mail.
11.3 The Parties acknowledge and agree that monthly reported revenues may be subject to variances in the 60 days following the close of the relevant month and shall not be deemed final until Any such deviations may be due to technical causes such as, but not limited to, amounts not previously verified by the platform, exchange rate calculations, unexpected costs (such as, inter alia, missed reconciliations with platforms handling advertising demand), technological or financial costs, and differences between platforms. Audioboost undertakes to indicate the aforementioned causes in the report, as well as to provide the Client with any details about them.
11.4 By the fifteenth day of each month, Audioboost shall indicate to the Client the amount of revenue calculated with reference to the preceding month in the manner set forth in this Article, and the Client may issue to Audioboost an invoice for the amount authorized, even if not yet
11.5 For the purpose of monthly billing of Net Revenues, only the figure reported by Audioboost will be authentic.
- Breakdown of revenues. Fees
12.1 As consideration for the performance of the Services, Audioboost shall be entitled to receive a percentage – calculated as set forth in the Order Form – of the total Net Revenues monthly derived from the sale of Ad Roll and Audio Seeding as reported pursuant to the preceding article.
12.2 The division between Audioboost and the Client of the Net Revenue arising from the contracts with the Advertisers is further specified in the Order Form. It is expressly understood that the payment of the abore mentioned amount by Audioboost to the Client shall be due only after Audioboost has fully collected the relevant amounts from the relevant Advertisers.
- Integration with Third Parties
13.1 The Client expressly acknowledges Audioboost’s right to enter into such agreements with Third Parties – at its sole discretion and without any reflection on the Parties’ obligations under the Agreement – as are necessary or otherwise deemed appropriate for the purpose of providing the Services.
13.2 Given that the Client’s primary interest under this Agreement is identifiable in maximizing the sales of its Ad Inventory through the Audioboost Marketplace, the Client may not claim any exclusivity or waiver with respect to the services guaranteed by Third Parties to Audioboost, in fulfillment of specific agreements, as prerequisites for the provision or optimization of the Ad Collection Service.
13.3 Considering the foregoing, it is expressly understood between the Parties that any additions – of whatever nature and however regulated also with reference to commercial profiles – between Audioboost and Third Parties will not produce any effect, nor will they determine any change in relation to the obligations of revenue sharing and payment of fees referred to in the
- Duration and termination
14.1 The Agreement has the term specified in the Order Form. Upon expiration, the Agreement will automatically renew for an equal period of time – and likewise for subsequent expirations – unless one Party notifies the other Party of its desire not to renew the Agreement upon expiration by sending the other Party written notice by registered letter with return receipt or by certified e-mail (e.c.) at least 90 (ninety) days prior to the expiration of the Agreement.
14.2 Audioboost has the right to terminate the Agreement with immediate effect, giving notice to the Client by registered letter with return receipt or by certified e-mail (e.c.), if the Client fails to comply with the obligations set forth in Article 8 and the further obligations set forth in the Agreement or forfeits the ownership of the Websites indicated in the Order Form.
14.3 The Client shall have the right to terminate the Agreement with immediate effect, by giving notice to Audioboost in the manner set forth in the preceding paragraph, if Audioboost fails to comply with its obligations under Article 7.
- Communications
15.1 For the purposes of the Agreement, all notices and communications between the Parties shall be made in writing by registered letter with return receipt or by certified e-mail (p.e.c.) (anticipated by ordinary e-mail) to the addresses set forth in the Order Form or such other address, if any, as each Party may subsequently notify the other by means of notice transmitted in accordance with the foregoing.
- Force majeure. Limitation of liability
16.1 In no event shall a Party be liable to the other Party for its failure to perform, in whole or in part, or for delay in performing any of its obligations under the Agreement, if such failure or delay is attributable to events of force majeure or otherwise to circumstances beyond its reasonable control (including but not limited to: fires, general strikes, natural disasters, wars, pandemics, epidemics, coups, airplane crashes, acts of terrorism, power shortages, unavailability of telephone connection lines or other network service providers, malfunction of computers and other electronic devices forming an integral part of the Internet network, software malfunction, as well as actions of third parties with access to the network).
16.2 Audioboost’s liability, for any reason whatsoever arising from the Agreement or otherwise from the provision of the Services, shall in no event exceed an amount equal to the amount paid to the Client under this Agreement.
16.3 Except in cases of willful misconduct or gross negligence, the Client acknowledges and agrees that Audioboost shall not be liable for damages for loss of profit, loss or damage to data, loss of profit, loss of business opportunities, and delay in collections that may be suffered by the Client.
- Disclosures between the Parties and Data Pertaining to the Services.
17.1 Pursuant to and for the purposes of the provisions of the GDPR, by signing this Agreement, the Parties undertake, informing each other, that all personal data provided directly by the Parties or of which they come into possession during the term of the Agreement and in any case connected with the Agreement itself, relating to their own personnel or collaborators or third parties, will be subject to processing, automated and otherwise, exclusively for the managerial and administrative purposes inherent in the fulfillment of contractual and legislative obligations. The provision of the data is necessary for the fulfillment of the aforementioned purposes, and failure to do so will make it impossible to fulfill them in whole or in part. The data will be used by the Parties only in ways and procedures necessary for the pursuit of the stated purposes. The Parties declare and mutually acknowledge that, in connection with the processing of personal data referred to in this Article, the data subjects will have the right to know, delete, rectify, update, supplement, object to the processing of their personal data, as well as all other rights under Chapter III of the GDPR. For processing carried out by the Publisher, the data controller is the Publisher itself, based at the address indicated in the Order Form. For the processing carried out by Audioboost, owner is Audioboost itself, based at the address indicated in the header of this Agreement. For more information on the processing activities carried out by Audioboost as the data controller, please see the notice attached to the Order Form as Annex A.
17.2 In the event that the performance of the Agreement involves the processing of personal data by Audioboost on behalf of (i) the Publisher and/or (ii) the Adnetwork, the latter shall appoint Audioboost as (i) data controller or (ii) sub-processor within the meaning of Article 28 of the Regulations, by means of the appropriate Personal Data Processing Agreement (the “Appointment”) accessible at the following link: www.audioboost.com/dpa , which forms an integral and substantive part of this Agreement. In case sub (ii), the Adnetwork further warrants that it has itself been appointed as a data controller by the Publisher by an act substantially similar to the Appointment. Furthermore, in such cases (i) Publisher or (ii) the Adnetwork hereby authorizes Audioboost to appoint in turn additional sub-processors who, due to technical and/or operational necessity, must be involved for processing functional to the performance of the Agreement. Finally, (i) Publisher and/or (ii) the Adnetwork agree, where required by the Additional Provisions (as defined in Section 18.5 below), to share with Audioboost all additional agreements, authorizations and/or other data protection documentation that may be required in connection with Audioboost’s performance of the Services.
- Processing of personal data using cookies or other tracking tools
18.1 Throughout the term of the Agreement, Publisher represents and warrants that its Users:
- are provided with a clear, easy-to-understand privacy policy, which (i) is usable at least from the home page of each Website and (ii) identifies how data is collected and used;
- are always offered the opportunity to exercise their rights guaranteed by the Privacy Policy; and
- can provide through the CMP all necessary consents from time to time for the use of cookies and/or other tracking tools.
18.2 The Publisher acknowledges and expressly accepts that, for the performance of the Agreement, Audioboost, directly and/or through third party platforms may, in compliance with the requirements of the Privacy Regulations and the Provisions, collect on the Websites, by means of cookies and identifiers of a “technical” type, indicated within the extended policy, accessible at the following link: www.audioboost.com/cookie-policy-advertising (hereinafter: “Audioboost Policy”), data inherent to the operation of the Speakup-Article™ and the Services for the purpose of its delivery and/or accessibility and/or for the improvement of the Services themselves and/or the usability of the Speakup-Article™ Suite. The data and information thus independently collected by Audioboost may be processed, subject to the provisions of the Privacy Policy and the Provisions, i) when required by law and/or in a legal proceeding; ii) for the purpose of the operation of the Speakup-Article™ and/or iii) in aggregate and anonymous form, without any reference to the Publisher, for marketing purposes and promotion by Audioboost of the Service itself (e.g., case studies to be presented to its partners, customers or investors).
18.3 The Publisher also undertakes to implement on the Websites all the necessary disclosures and technical measures required by the Privacy Regulations, the Additional Provisions (as defined in par. 18 below.5) and the Provisions so that cookies and/or, in general, identifiers may be legitimately inserted in the Advertising Spaces by Audioboost (in its capacity both as a third party and as an intermediary on behalf of Third Parties), of a technical type (as better specified in art. 18.2 above), “analytics” and profiling type, as better specified in the AUDIOBOOST Disclosure. The Publisher also undertakes to ask the surfers of each Website for their prior consent (so-called “Short Notice”), committing in this regard to properly implement and manage its CMP before allowing Audioboost to release identifiers that require prior consent from the data subject. In this regard, the Publisher hereby guarantees that the Website:
- will disclose through its extended disclosure the use of third-party technologies as well as the collection and use of personal data through the Website;
- will include a link to the Audioboost Policy, as well as any additional links necessary to ensure compliance with the Privacy Policy and the Measures; and
- will provide users of each Website with appropriate disclosures and request the necessary (optional) consents in compliance with the Privacy Policy and, in each case, any applicable laws and regulations.
18.4 Audioboost represents and warrants that any activity of collection and processing of personal data of data subjects browsing each Website by Audioboost itself and/or by Third Parties will be carried out in full compliance with the Privacy Regulations, with particular reference to the Measures. At any time, the Publisher has the right to request Audioboost to provide without undue delay the documentation and/or any additional information necessary for the Publisher to fulfill its obligations under the Privacy Regulations.
18.5 The Publisher agrees as of now to:
- comply with any national, international and/or European Union legal provisions and the indications, measures and/or guidelines issued by the competent Supervisory Authorities, additional to those to which Audioboost is subject and applicable to the processing activities referred to in this Article 18 (hereinafter, the “Additional Provisions”), as well as to notify Audioboost of any obligations, burdens or fulfilments imposed on the latter pursuant to the Additional Provisions;
- indemnify and hold harmless Audioboost from any prejudicial consequences and any judicial or extrajudicial claims asserted by third parties in dependence of any violation of the Privacy Regulations, Additional Provisions and Measures in any way related to the processing activities referred to in this Article 18.
- Confidentiality
19.1 The Parties mutually acknowledge that in the performance of the Agreement they may exchange Confidential Information.
19.2 The Parties undertake to keep strictly confidential and privileged all Confidential Information of which they become aware in the context of the Agreement and the relationships that have occurred based on the Agreement. Therefore, the Confidential Information shall not be disclosed to third parties, either in whole or in part, either in writing, or orally, or in any other form, except with the express written authorization issued by the Party holding the Confidential Information.
19,3 If a Party were to share one or more of the Confidential Information relating to the other Party with its employees, contractors, consultants, subcontractors and/or any third parties involved in the Services under the Agreement, the receiving Party agrees to bind such third parties to the same obligation of confidentiality as set forth in the Agreement. In any case, each Party agrees to indemnify and hold the other Party harmless from all damages, costs, burdens and expenses, direct or indirect, in any way resulting from the breach of confidentiality obligation by the said third parties.
19.4 If a Party is requested to disclose Confidential Information, the Party shall promptly notify the Party holding the Confidential Information in writing so that the Party may be enabled to avoid disclosure of the Confidential Information under and pursuant to applicable laws.
19.5 In the event that any Confidential Information is copied, disclosed, or used for purposes other than those authorized under the Agreement, the Party who becomes aware of the Confidential Information agrees to promptly notify the Party who owns the Confidential Information in writing (without prejudice to the rights and remedies available to that Party) and, upon the request of that Party, to take any action (including recourse to judicial authority) necessary to remedy the unauthorized disclosure or to inhibit the unauthorized copying, disclosure, or further use of the Confidential Information.
19.6 The Parties mutually acknowledge that any violation or attempted violation of the confidentiality obligations set forth in this section of the Agreement will cause irreparable harm to the Party holding the Confidential Information.
19.7 The Parties mutually undertake, including for a period of five (5) years following the termination of the effectiveness of the Agreement, to treat as confidential the business, organizational and financial information received for the proper fulfillment of the obligations contained in this Agreement and not to disclose it to third parties without the prior written consent of the other Party nor to use it for purposes other than those stipulated in this Agreement.
- General Provisions
20.1 Neither Party may assign the Agreement without the prior written consent of the other Party. The right of either Party to transfer this Agreement to any company that – including as a result of a sale, merger, acquisition or other relevant transaction – is able to exercise control over the Party pursuant to Article 2359 of the Italian Civil Code is expressly reserved. In this case, it will be sufficient to notify the other Party in the manner indicated in Article 15.
20.2 Any forbearance on the part of either Party toward conduct of the other put in place in violation of any provision of the Agreement does not constitute a waiver of rights under the violated provision or of the right to demand proper performance of all provisions of the Agreement.
20.3 Failure or delay in exercising a right to which a Party is entitled under the Agreement does not imply waiver thereof.
20.4 The invalidity or ineffectiveness of any provision of the Agreement shall in no case result in the invalidity and/or ineffectiveness of the entire Agreement. However, in such cases, the Parties hereby undertake to negotiate in good faith in order to replace the provisions subject to the declaration of invalidity or ineffectiveness with others capable of determining, as far as legally possible, substantially the same effects, referring to the object and purpose of the Agreement in order to preserve its validity.
20.5 The Agreement does not give rise to any type of associative form, nor can its content be considered to be aimed at the establishment of a company between the Parties, a joint venture or a merger of their activities, nor does it confer rights and/or faculties on the Parties to act on behalf of each other or to enter into an agency and/or distribution contract. Neither Party shall have the right to bind the other Party except as expressly provided in the Agreement.
20.6 The Agreement contains the overall agreement reached by the Parties with respect to its subject matter and prevails over all previous communications, statements, understandings and agreements, whether oral or written, reached by the Parties.
20.7 Any modification, variation, or waiver of the Annex A (Order Form) shall not be valid and binding where it does not result from a written instrument signed by both Parties.
- Applicable Law and Jurisdiction
21.1 The Agreement, as well as any other agreement connected with it, shall be governed by Italian law and all disputes relating to the Agreement, including those concerning its interpretation, execution, validity and legal existence, shall be referred to the exclusive jurisdiction of the Court of Milan.