Radio Promotion

END USER AGREEMENT FOR RADIO PROMOTION

Interpretation

The definitions and rules of interpretation in this Clause apply in this End User Agreement.

"Agreement", this End User Agreement;

"Authorised Users", (i) where the End-user is an entity other than an individual: those employees, agents and independent contractors of the End-user and those employees, agents and independent contractors of End-user’s affiliate(s) and partners who are authorised by the End-user to use or access the Services, and (ii) where the End-user is an individual, the End-user.

"Business Day", any day which is not a Saturday, Sunday or public holiday in Nigeria;

"Company" means FlareTech Nigeria Limited

“Services” means Radio Promotions

Any and all songs submitted will be subject to a review and approval. If a song is disapproved, a refund would be made within the next 4 to 5 working days.

Ensure you that a radio edited version of your song,is in compliant with the regulations of the National Broadcasting Commission  (NBC) is submitted, to avoid disapproval of your song.

1. Services

1.1 The Company will provide the End-user with use of and access to the Services in accordance with the terms of this Agreement.

1.2 In relation to the Authorised Users, the End-user undertakes that each Authorised User shall keep a secure and confidential password for his use of the Services and that each Authorised User shall comply with good industry practice in respect of password security.

1.3 The End-user shall not knowingly access, store, distribute or transmit any Viruses, or any material, data or Content during the course of its use of the Services that, in the sole opinion of the Company:

1.3.1 Is unlawful, harmful, threatening, defamatory, obscene, harassing or racially or ethnically offensive;

1.3.2 violates or infringes any Intellectual Property Rights or other rights of third parties;

1.3.3 facilitates illegal activity;

1.3.4 depicts sexually explicit images;

1.3.5 promotes unlawful violence;

1.3.6 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity; or

1.3.7 causes damage or injury to any person or property, and the Company reserves the right, without liability to the End-user, to disable the End-user's access to any material that breaches the provisions of this Clause 1.3.

1.4. The End-user shall not and shall ensure that the Authorised Users do not:

1.4.1 except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:

(a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services (as applicable) in any form or media or by any means including any part of the Company Data, the data models or screens, and any data that has been entered by the Company or one of its agents; or

b) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software;

1. access all or any part of the Services in order to build a product or service which competes with the Services;

2. license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make Services available to any third party except the Authorised Users;

3. attempt to obtain, or assist third parties in obtaining, access to the Services other than as provided under this Agreement;

1.5. The End-user shall not, and shall ensure that the Authorised Users do not, do any of the following while using or accessing the Services:

1.5.1. disable, hack, circumvent or otherwise interfere with security related features of the Software or the Services;
1.5.2. use any metadata, meta tags or other hidden text utilising the Company name, trademark, URL or product name;

1.5.3. upload, submit, post, email or otherwise transmit any unsolicited or unauthorised advertising, promotional materials, junk mail, spam, chain letters, so-called pyramid schemes or any other form of solicitation;

1.5.4. forge any TCP/IP packet header or any part of the header information in any posting or in any way use the Services or the Software to send altered, deceptive or false source-identifying information;

1.5.5. attempt to scan, probe or test the vulnerability of any Company system or network or breach, impair or circumvent any security or authentication measures protecting and providing security for the Services or the Software;

1.5.6. collect or store Personal Data about any third party except in accordance with the Data Protection Legislation; or

1.5.7. misrepresent or impersonate its affiliate with any person or entity, through pretext or some other form of social engineering or otherwise commit fraud.

1.6. The End-user shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify the Company.

1.7. The Company may amend the Services in its sole and absolute discretion from time to time on notice to the End-user.

2. Content

2.1 The End-user shall submit all Content at its sole expense in the format(s) required by the Company or the radio stations. Technical descriptions of such format(s) will be provided to the End-user on request. In the event that Content is provided by the End-user in the incorrect format, the End-user shall be liable to pay any resubmission or similar fees levied by the Company.

2.2 The End-user hereby grants to the Company, during the term of this Agreement and for a reasonable period thereafter, a non-exclusive, royalty-free, irrevocable and worldwide licence (including without limitation the right to sub-license all of these rights) to:

2.2.1 use the Content to provide the Services;

2.2.2 sell, copy, display, distribute and otherwise exploit the Content by all means and media (whether now known or existing in the future) through any and all radio stations or streaming stores or the Company website (including for permanent download by End-users);

2.2.3 to use the Content in connection with the Company's business purposes; and

2.2.4 to collect all income deriving from the activities specified in this clause 2.2.

2.3 The Company shall make the Content available ‘as is’ through the Services and shall not be liable for any reliance placed by the End-user or any third party on the Services or Content.

2.4 The Company engages the services of third party providers who also provide back-up services for data stored in or entered into the Software, including Content. In the event of any loss or damage to Content, the End-user's sole and exclusive remedy shall be for the Company to use reasonable commercial endeavours to have its service providers restore the lost or damaged Content from the latest back-up of such Content maintained in accordance with the archiving procedure described in the relevant back up policies. The Company shall not be responsible for any loss, destruction, alteration or disclosure of Content caused by any third party (except those third parties sub-contracted by the Company to perform services related to Content maintenance and back-up or the Company's duly authorised contractors or agents).

2.5 The End-user warrants and represents that:

2.5.1 It has the authority to enter into this Agreement;

2.5.2 It is the owner or licensee of the Content and is permitted to provide the rights to the Content as specified in this Agreement to the Company and the radio stations; and

2.5.3 the use and exploitation by the Company or any of the radio stations of Content as contemplated by this Agreement shall not infringe the Intellectual Property Rights of any third party.

2.6 For clarity, the End-user shall be solely responsible for obtaining and paying for any licences from the owners of any Intellectual Property Rights in Content required in connection with the use or exploitation of Content by the Company or the radio stations as contemplated in this Agreement.

2.7 The End-user acknowledges that in providing the Services and payments hereunder, the Company will be required to enter into certain agreements with various radio stations. The selection of these radio stations shall be within the sole discretion of the Company.

3. The Company's Obligations

3.1 The Company warrants that the Services and any Software: (i) will be performed in accordance with reasonable skill and care, and (ii) does not infringe any third party Intellectual Property Rights.

3.2 The warranty at Clause 3.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Company's instructions, or modification or alteration of the Services by any party other than the Company or the Company's duly authorised contractors or agents. If the Services do not conform with the warranty at Clause 3.1 above, the Company will, at its expense: (i) use reasonable commercial endeavours to correct any such non-conformance promptly, or provide the End-user with an alternative means of accomplishing the desired performance; or (ii) re-perform the relevant Services (as applicable). Such correction, substitution or re-performance constitutes the End-user's sole and exclusive remedy for any breach of the warranty set out in Clause 3.1. Notwithstanding the foregoing, the Company:

3.2.1. does not warrant that the End-user's use of the Services will be uninterrupted or error-free, nor that the information obtained by the End-user through the Services will meet the End-user's requirements; and

3.2.2.is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the End-user acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities. The Company shall use commercially reasonable endeavours to prevent and/or minimize any such delays or loss of data resulting from the transfer of data over communications networks and facilities to the extent that such matters are within the Company’s control.

4. End-User's Obligations

4.1The End-user shall:

4.1.1. provide the Company with all necessary:

​ a. co-operation in relation to this Agreement; and
​
​ b. access to such information as may be required by the Company,

in order to render the Services and other Company services as may be available from time to time and in relation to security and configuration services;

4.1.2. comply with all applicable laws and regulations with respect to its activities under this Agreement;

4.1.3. carry out all other End-user responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the End-user's provision of such assistance as agreed by the parties, the Company may adjust any agreed timetable or delivery schedule as reasonably necessary;

4.1.4. ensure that the Authorised Users use the Services in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorised User's breach of this Agreement;

4.1.5. obtain and maintain all necessary licences, consents, and permissions necessary for the Company, its contractors and agents to perform their obligations under this Agreement;

4.1.6. ensure that its network, systems and devices comply with the relevant specifications provided by the Company from time to time and with good industry practice; and

4.1.7. be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Company's systems, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the End-user's network connections or telecommunications links or caused by the internet.

5. Proprietary Rights

5.1 The End-user acknowledges and agrees that the Company and/or its licensors own all Intellectual Property Rights in the Services. Except as expressly stated herein, this Agreement does not grant the End-user any rights to, or in, any Intellectual Property Rights.

5.2 The End-user shall ensure that all titles, logos, trademarks, copyright and other notices applied by the Company to the Services or any materials provided or produced by the Company or the Services in connection with this Agreement shall be reproduced and not deleted or removed.

6. Confidentiality

6.1 The End-user may be given access to Confidential Information from the Company in the course of the provision of the Services under this Agreement. The Company's Confidential Information shall not be deemed to include information that:

6.1.1.is or becomes publicly known other than through any act or omission of the End-user;

6.1.2.was in the End-user's lawful possession before the disclosure;

6.1.3.is lawfully disclosed to the receiving party by a third party without restriction on disclosure;

6.1.4.is independently developed by the End-user, which independent development can be shown by written evidence; or

6.1.5.is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

6.2 The End-user shall hold the Company's Confidential Information in confidence and, unless required by law, not make such Confidential Information available to any third party, or use the Company's Confidential Information for any purpose other than the implementation of this Agreement.

6.3 The End-user shall take all reasonable steps to ensure that the Company's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.

6.4 The End-user acknowledges that details of the Software and the Services constitute the Company’s Confidential Information.

6.5 This Clause 6 shall survive expiry or termination of this Agreement, however arising.

7. Indemnity

7.1 The End-user shall defend, indemnify on demand and hold harmless the Company and its authorised distributors or partners against any and all claims, actions, proceedings, losses, damages, fees, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with: (i) the End-user's and its Authorised Users' use of the Services otherwise than as permitted under this Agreement, or (ii) any claim by any third party that the use or exploitation of Content by the Company or any of the Consumer Stores infringes a third party's Intellectual Property Rights or other rights.

8. Limitation of Liability

8.1 Except as expressly and specifically provided in this Agreement:

8.1.1.the End-user assumes sole responsibility for results obtained from the use of the Services by the End-user, and for conclusions drawn from such use. The Company shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Company by the End-user in connection with the Services, or any actions taken by the Company at the End-user's direction;

8.1.2.all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law (with respect to the Services or otherwise) are, to the fullest extent permitted by applicable law, excluded from this Agreement; and

8.1.3.the Services are provided to the End-user on an "as is" basis.

8.2 Nothing in this Agreement shall limit or exclude the liability of either party for a matter in respect of which it would be unlawful to exclude or limit liability.

8.3 Subject to 8.2:

8.3.1.NEITHER THE COMPANY NOR ITS AUTHORISED DISTRIBUTORS OR PARTNERS SHALL BE LIABLE TO THE END-USER WHETHER IN TORT (INCLUDING FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY), CONTRACT, MISREPRESENTATION, RESTITUTION OR OTHERWISE FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, DEPLETION OF GOODWILL AND/OR SIMILAR LOSSES OR LOSS OR CORRUPTION OF DATA OR INFORMATION, OR PURE ECONOMIC LOSS, OR FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL LOSS, COSTS, DAMAGES, CHARGES OR EXPENSES HOWEVER ARISING UNDER THIS AGREEMENT.

8.3.2.THE COMPANY'S TOTAL AGGREGATE LIABILITY (AND THAT OF ITS AUTHORISED DISTRIBUTORS OR PARTNERS) IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), MISREPRESENTATION, RESTITUTION OR OTHERWISE, ARISING IN CONNECTION WITH THE PERFORMANCE OR CONTEMPLATED PERFORMANCE OF THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL AMOUNT OF THE FEES RECEIVED BY THE COMPANY PURSUANT TO THIS AGREEMENT DURING THE 6 MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM AROSE.

8.4 For the purposes of Clause 8.3, the Company is acting on its own behalf and as an agent for and on behalf of its authorised distributors and partners, and accordingly the Company may enforce and rely on Clause 8.3 on its own behalf and/or in its capacity as agent of its authorised distributors and partners.

9. Term & Termination

9.1 This Agreement shall continue until terminated in accordance with this Agreement.

9.2 The Company may terminate this Agreement on 7 days' notice to the End-user.

9.3 Without prejudice to any other rights or remedies to which the parties may be entitled, the Company may terminate this Agreement without liability to the End-user if:
9.3.1. the End-user commits a material breach of any of the terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach;

9.3.2. an order is made or a resolution is passed for the winding up of the End-user, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the other party;

9.3.3. an order is made for the appointment of an administrator or examiner to manage the affairs, business and property of the End-user, or documents are filed with a court of competent jurisdiction for the appointment of an administrator or examiner of the End-user, or notice of intention to appoint an administrator or examiner is given by the End-user or its directors or by a qualifying floating charge holder;

9.3.4. a receiver is appointed of any of the End-user's assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the End-user, or if any other person takes possession of or sells the End-user's assets;

9.3.5. the End-user makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way;

9.3.6. the End-user ceases, or threatens to cease, to trade;

9.3.7. the End-user (being an individual) is the subject of a bankruptcy petition or order; or

9.3.8. the End-user takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.

10. Force Majeure

The Company shall have no liability to the End-user under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Company or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the End-user is notified of such an event and its expected duration.

11. Law & Jurisdiction

This Agreement shall be governed by and construed in accordance with the laws of Nigeria and the parties agree that any dispute relating to its terms or subject matter shall be resolved by arbitration.