We may modify these Terms in Our sole discretion. It’s Your responsibility as a User to be aware of the latest version of these Terms and for that purpose visit Our website on a regular basis. If You do not agree with these Terms or its future amendments, We recommend You to leave Our website and don’t use Our Services.
1. INFORMATION ON SHOUTCAST
1.1. The website and the Services are created, developed and operated by SHOUTCAST, a Belgian company incorporated under Belgian law, with registered office at B-1070 Brussels, Route de lennik, 451, Belgium and registered under the company registration number 0684.758.236.
1.2. Any questions or complaints relating to the website, the platform and these Terms may be addressed to SHOUTCAST at the following e-mail address: email@example.com.
2. ACCEPTANCE AND ACCESS TO THE WEBSITE
2.2 These Terms exclusively govern the relationship between You and SHOUTCAST in relation to the use of the website/platform and use of the Services. They may be consulted at any time on the website/platform.
3. DESCRIPTION OF THE SERVICES
3.1. SHOUTCAST offers a complete suite of software, tools and services providing Online Audio Streaming and Hosting Solutions, Audience Metrics, Ad-Stitching Solutions (“Services”).
3.2. By signing this Specific Agreement and paying the related fees under Article 3.1, the User will be given access to software solutions as a service, meaning access to the following IT services and features:
- Technical features
- Unlimited stations
- Unlimited simultaneous listeners
- MP3&AAC Format Supported (up to 320kbps)
- Hosting Infrastructure
- Premium Servers & Bandwidth
- Full Redundancy
- Icecast 2
- SSL certificate
- Radio Manager Online
- Metrics Dashboard
- Manage stations (create new one, manage geoblocking, …)
- Audience monetization (Ad Stitching Capabilities)
- Pre-roll / Mid-Roll
- Ad Injection
SHOUTCAST will monetize the User’s audience exclusively under its trademark all.radio.
3.3. SHOUTCAST will host the User’s stream on its servers and will give access to the User’s streams “AS-IS” to listeners online under these Terms. As such, SHOUTCAST does not provide any music licensing of any kind to the User’s stream.
4. FEES AND PAYMENT
4.1. Fees. Parties agree that the User will pay SHOUTCAST for the provision of the Services the following fees:
(i) in consideration for the hosting solution, User will pay SHOUTCAST a yearly fee of 50 EUR (excl. VAT) per radio station with a consumption limit of 3 TB by month (“Hosting Fee”); and
(ii) in consideration for the User’s audience monetization, SHOUTCAST will retain a percentage of the net discounted advertising sales earned from the advertising clients (“Advertising Revenue”). As such, SHOUTCAST shall retain a sales house commission of 50% of the Advertising Revenue (“Commission”) and will remit to the User the remaining of the Advertising Revenue.
4.2.1. Hosting Fee. The payment of the Hosting Fee by You will be an online payment through the Website (through the SHOUTCAST Radio Manager User Interface). You may pay the Price online by credit card (Visa, MasterCard, American Express, Discover, JCB, Diners Club, …). An invoice for the Hosting Fee will be generated automatically at the time of the online purchase and communicated to You. In the event of automatic renewal being provided for by the Terms, You will receive a notification informing of the debit of Your credit card if the applicable Hosting Fee at the time of renewal has changed.
You agree to pay the applicable Hosting Fee for the Services and You agree that SHOUTCAST may debit Your payment method for this purchase, as well as any additional amounts (including all taxes and late payment fees, if any) incurred by or relating to Your “SHOUTCAST Member Account”. You are responsible for the timely payment of the Hosting Fee and for the provision to SHOUTCAST of a valid payment method for the payment of the Hosting Fee. You agree to receive all invoices electronically, including by e-mail.
Right of withdrawal : if You are a consumer You agree that You won’t be able to cancel within the fourteen (14) days as of the online purchase Your subscription to SHOUTCAST Easy as the purchased Services will be immediately executed at the time of the purchase.
4.2.2. Advertising Revenue. SHOUTCAST will invoice the Advertisers and media agencies for the campaigns inserted in the Ad Inventory of the Publisher and will receive the corresponding revenue. SHOUTCAST then undertakes to share with the User a percentage of this cashed revenue from these Ad insertion orders in the Ad Inventory of the User, under condition of the effective payment of the advertising campaign by the Advertiser or media agency to SHOUTCAST.
SHOUTCAST therefore does not bear any delcredere obligation and is in no case liable for the default of payment of the Advertisers or media agencies. In case of non-payment or partial payment by the Advertiser or its agent, SHOUTCAST will make reasonable debt recovery actions. In case of partial payment, the cashed sums will be shared between the User and SHOUTCAST.
If You have generated revenue on Your Streams through the Monetization Services, SHOUTCAST will make a balance sheet every month with estimated revenue and a payment will be made to the PayPal account of the relevant User (60) business days after the express or tacit acceptance by the User of the “Repayment Note”(see further below), subject to:
(i) the effective payment to SHOUTCAST by the Advertisers/media agencies;
(ii) the fulfilment by You of the Payment Activation Conditions: You have to fill in your “SHOUTCAST Member Account” and give to SHOUTCAST all the necessary, true, accurate, up to date and in accordance with the tax legislation of Your country of residence, information to allow payment by SHOUTCAST of your revenue share through Paypal pursuant to the Monetization Services (Your Paypal Account); and
(iii) the credit balance threshold conditions: Any Paypal costs related to this transaction will be borne by the User. This payment will be made under the condition that the User's SHOUTCAST Member Account (visible in the Section “revenue” of Your “SHOUTCAST Member Account”) reaches a credit balance threshold of at least 25EUR/$25 during that month. If not, the amounts existing on the User SHOUTCAST Member Account (visible in the Section “revenue”) will be cumulated during the calendar year. In the event that the User does never reach the credit balance threshold of 25EUR/$25 during the calendar year, the amounts existing on its SHOUTCAST Member Account will be lost. In case You do not meet the Payment Activation Conditions during more than 180 days as from the registration date of You as a SHOUTCAST Member or as from the date of the last payment made by SHOUTCAST to You or any of SHOUTCAST affiliates companies, the amounts existing on Your “SHOUTCAST Member Account” will be definitively lost.
4.3. Reimbursement. In case of termination of these Terms by User of following User’s breach of its obligations under these Terms any amount paid by User to SHOUTCAST will not be refunded.
5.1. Mutual Representations and Warranties. Each Party represents, warrants and covenants to the other Party that it has the necessary power, authority and capacity to perform its obligations under these Terms.
5.2. SHOUTCAST’s Representations. SHOUTCAST represents and warrants that, to SHOUTCAST’s knowledge, as of the Effective Date of these Terms, the Services do not violate any Intellectual Property rights and there are no pending or threatened suits, actions or proceedings against SHOUTCAST that would affect the provision of Services.
SHOUTCAST further warrants that the Hosting Services is accessible 24/7, under reservation of any interruptions necessary for the maintenance of the SHOUTCAST platform, its servers and the general features of the Hosting Services. SHOUTCAST warrants that it will make its best efforts to ensure that these interruptions are planned and communicated to its users by any means of communication 48 hours in advance.
5.3. User’s Representations. User hereby represents and warrants that: (i) the execution of these Terms by the User, performance hereunder by User and the grant of rights to SHOUTCAST hereunder do not and will not result in a breach of or violate any third party right or any term or provision of
these Terms to which User is a party; and (ii) it will ensure that it uses the Services in compliance with all applicable laws, rules and regulations and with any obligations set forth in these Terms with respect to Intellectual Property, privacy or content obligations.
User further warrants that it has the sole editorial control over the content of its own Stream and as such, the User warrants SHOUTCAST that the User has obtained all the necessary authorizations for this purpose and, in particular, that the User has acquired the authorizations of the authors, composers, Users, phonogram producers and performers of the musical works and recordings that the User broadcast in its Stream, whether directly or through the collective management companies which represent them, in all the territories where the User’s Stream is broadcasted, and in this sense, the User warrants SHOUTCAST against any claims in this respect and the User agrees to replace SHOUTCAST in the event of any claim (made by any natural or legal person) in relation to the content of the User’s Stream hosted and transmitted by SHOUTCAST.
In a more general sense, the User warrants SHOUTCAST, its subsidiaries and associates, its employees, directors and consultants against any loss, liability, damage, expense, or claim, including for damages, penalties, interests, fees and costs of legal counsel, resulting from (i) the creation, the broadcasting and the hosting of the User’s Stream; (ii) any breach, whether proven or alleged, of the warranties given by the User’s to SHOUTCAST; (iii) any third party complaint regarding the necessary authorisations required for the distribution, broadcasting and hosting of the User’s Stream or related to the names, logos and trademarks used by the User ; (iv) any claim relating to the User’s Stream of a nature which is defamatory, disparaging, libellous, slanderous, abusive, contrary to public order or good morality or violating any law, regulation, order, judgment or decision.
The User finally warrants not to use alternative audience generation methods of which listeners are unaware (e.g. by using a Player in mute mode or preventing using the Stop function) or technical means (i.e. Bots) generating listeners that are not real.
Periodic checks shall be conducted by SHOUTCAST. Should an infringement be recorded, the User shall be notified in writing to cease and to make cease such actions immediately. In case of non-compliance and/or a new infringement being recorded by SHOUTCAST, the User shall be definitively deactivated by SHOUTCAST, without prejudice of any damages.
In such cases, SHOUTCAST reserves the right to terminate immediately the Services without any compensation for the User and to suspend definitively the payment of any Advertising Revenue pursuant to Article 4.1, without any compensation to the User.
5.4. Disclaimer of Warranties. EXCEPT FOR WARRANTIES EXPRESSLY MADE IN THIS FRAMEWORK AGREEMENT, USER ACKNOWLEDGES AND AGREES THAT ALL SOFTWARE USED BY USER AND PROVIDED BY SHOUTCAST ARE PROVIDED “AS IS”, WITH ALL FAULTS AND WITHOUT ANY WARRANTY, REPRESENTATIONS OR CONDITION OF ANY KIND, EXPRESS, LEGAL OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, QUALITY AND FITNESS FOR A PARTICULAR OR GENERAL PURPOSE, AVAILABILITY, RELIABILITY, TITLE, OWNERSHIP (INCLUDING THE WARRANTY THAT THE RELEVANT PROPERTY IS FREE OF ANY OTHER RIGHTS OR CHARGES), NON-INFRINGEMENT, CONFORMITY, ACCURACY AND WORKMANSHIP OF THE SERVICES OR ANY PROPRIETARY MATERIALS.
6. LIMITATION OF LIABILITY
6.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE, UNDER OR IN RELATION TO THESE TERMS, FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY, AGGRAVATED, ECONOMICAL OR OTHER SIMILAR DAMAGES, HOWSOEVER CAUSED, AND IRRESPECTIVE OF WHETHER THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT, ITS SUPPLIER(S) OR ANY OF THEIR LAWFUL AGENTS, CONTRACTORS, OR EMPLOYEES, HAD BEEN
ADVISED OF, HAD KNOWLEDGE OF, OR REASONABLY COULD HAVE FORESEEN THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, IN NO EVENT WILL SHOUTCAST BE LIABLE TO USER FOR: (i) DIRECT DAMAGES OR LOSSES RESULTING FROM ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION TELECOMMUNICATIONS SERVICE PROVIDERS, THE INTERNET BACKBONE, OR OTHER THIRD PARTY SUPPLIERS OF PRODUCTS OR SERVICES NOT HIRED DIRECTLY BY SHOUTCAST, (ii) DAMAGES OR LOSSES CAUSED BY THE PUBLUSHER, OR ITS EMPLOYEES, AGENTS OR SUBCONTRACTORS, OR OTHER EVENTS BEYOND THE REASONABLE CONTROL OF SHOUTCAST INCLUDING FAILURE, LOSS OR DAMAGE TO USER EQUIPMENT CAUSED BY OR ASSOCIATED WITH SHOUTCAST’S REMOTE ACCESS; OR (iii) ANY FINES OR PENALTIES ASSESSED FOR CLIENT’S FAILURE TO COMPLY WITH ANY LAW OR GOVERNMENTAL REGULATIONS. THE ABOVE DAMAGES EXCLUSIONS SHALL NOT APPLY TO (A) CONFIDENTIALITY OBLIGATIONS OR (B) WILFUL MISCONDUCT, FRAUD OR GROSS NEGLIGENCE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SHOUTCAST’S TOTAL AGGREGATE LIABILITY FOR ALL CLAIMS UNDER OR IN RELATION TO THESE TERMS SHALL BE LIMITED TO THE TOTAL AMOUNT OF FEES PAID BY USER TO SHOUTCAST, WITH RESPECT TO SERVICES UNDER THESE TERMS.
7.1. Subject to the limitations of Article 6, each Party will hold harmless, indemnify, and defend the other Party, as well as its representatives, in respect of any third-party damages, liabilities, penalties, claims, actions, suits, proceedings, costs, expenses (including reasonable attorneys’ fees and court costs), arising out of, connected with or resulting from a breach of any representations and warranties made under these Terms. In the event of a claim for which a Party seeks indemnification, the indemnified Party will (i) promptly notify the indemnifying Party in writing of the claim; (ii) grant the indemnifying Party sole control of the defense and settlement of the claim, unless such Party waives this right by written notice; and (iii) provide the indemnifying Party with all assistance, information and authority reasonably required for the defense and settlement of the claim, at the indemnifying Party’s expense. Any settlement that results in any ongoing liability that detrimentally impacts the rights of the indemnified Party will require the consent of the indemnified Party, which shall not be unreasonably withheld. SHOUTCAST will have no liability for any claim under this Article 7 arising out of: (i) modifications to a Service or any related software other than modifications made by SHOUTCAST; (ii) the use or combination of the Services or any related software with non-SHOUTCAST programs, data or equipment, where the Services and related software alone would not have given rise to the claim; (iii) User’s continued use of the Services or any related software for which SHOUTCAST has provided User with modification, replacement or update if the use of such modified or updated Services or related software would have prevented the claim; (iv) User’s use of a Service or related software in breach of these Terms; or (v) User’s continued use, distribution or sublicensing of a Service or related software after receipt by User from SHOUTCAST of a notice describing claim under this Article 7 alleging that a Service or any related software infringes any third party’s Intellectual Property rights.
8. TERM AND TERMINATION
8.1. Term and Renewal. These Terms shall enter into force as of and from the acceptance of these Terms and the Use of the Services and shall remain in effect until the Services are terminated.
8.2. Mutual Termination. Either Party may terminate these Terms, at any time, upon ninety (90) days written notice, with acknowledgement of receipt, to the other Party.
8.3. Termination for Default. Either Party may terminate these Terms on written notice to the other Party if the other Party fails to comply with any material provision of these Terms and fails to cure such failure within fifteen (15) days of delivery of a notice of default from the non-defaulting Party
(hereafter the “Cure Period”). If SHOUTCAST terminates these Terms pursuant to this Article 8.3, any amount to be paid to SHOUTCAST by the User shall become due and payable immediately.
8.4. SHOUTCAST’s Termination. SHOUTCAST may terminate these Terms, or part or all the Service(s), at any time without written notice to the User, in the following events (i) User’s exceeds the consumption limit of 3 TB by month in accordance with Article 4.1 (i); (ii) an attack on the User’s hosted system or the User’s hosted system is accessed or manipulated by a third party without the User’s consent; (iii) SHOUTCAST is required to do so by law; or (iv) if the User becomes insolvent, makes an assignment for the benefit of creditors, appoints (or has appointed on its behalf) a trustee, receiver or similar officer, or commences a proceeding seeking reorganization, liquidation or similar relief under any bankruptcy, insolvency or similar debtor-relief statute.
8.5. The exercise of the termination right by SHOUTCAST, in accordance with Article 8, shall be without prejudice to its right to claim for compensation of any damage suffered as a result of such termination.
9. INTELLECTUAL PROPERTY
9.1. Each Party is and shall continue to be the sole and exclusive owner of all its intellectual property (registered or unregistered patents, copyrights, neighbouring rights, moral rights, trademarks, trade names, service marks, industrial designs, software, computer programs and source codes (hereafter the “Intellectual Property”)), and Confidential information, including all Intellectual Property rights therein or thereunder. Neither Party shall, directly or indirectly (i) attempt to determine source code for computer programs whether owned by the other Party or licensed to the other Party from a third party; (ii) modify, reprogram, translate, disassemble, decompile, or otherwise reverse engineer the Intellectual Property whether such Intellectual Property is owned by the other Party or licensed to the other Party from a third party; nor (iii) remove, modify or obscure any Intellectual Property rights or other proprietary rights notices that appear on any of the Intellectual Property, whether such Intellectual Property is owned by the other Party or licensed to the other Party from a third party, or on any software. Under no circumstances does a Party’s possession, access or use of the Intellectual Property of the other Party transfer any ownership rights or any Intellectual Property rights to the Intellectual Property or property of the other Party.
9.2. Notwithstanding Article 9.1, SHOUTCAST is authorized, within the framework of and for the strict requirements of these Terms, in particular for press releases, marketing or promotional purposes, to reproduce, on any medium whatsoever and worldwide, any distinctive signs, logo, names and trademarks belonging to the User.
10.1. User undertakes to keep confidential and not communicate to any person, directly or indirectly, information of any kind regarding SHOUTCAST including notably databases, software, commercial, industrial, technical, financial, nominative information which will be disclosed by SHOUTCAST or of which User may have become aware during the execution of these Terms (“Confidential Information”).
10.2. User undertakes to use appropriate means to keep confidential the Confidential Information disclosed during the execution of these Terms.
10.3. Notwithstanding Article 10, these Terms shall be deemed confidential and as such shall not be subject to any publication or disclosure to any third party, unless expressly authorized in writing by the Parties.
11. PRESS RELEASES AND PUBLICITY
11.1. SHOUTCAST may issue one or more press release(s) announcing the Parties commercial relationship and transactions under these Terms.
11.2. The text of any such press release shall be submitted for approval to the User before being issued. It being understood that the User will not unreasonably withhold or delay its consent to press releases.
11.3. Notwithstanding the foregoing, SHOUTCAST shall prevent from revealing the existence of or terms of these Terms in any publicity or advertising without the prior written approval of the User.
12. PRIVACY AND GDPR
12.2. Processing of Personal Data. User and SHOUTCAST agree that (i) User is the controller of User’s personal data and/or the personal data of User’s customers, visitors, listeners or viewers listening to or viewing User’s content; and that (ii) SHOUTCAST is the processor of such personal data. SHOUTCAST will process personal data only on instructions from User. SHOUTCAST agrees that these Terms along with User’s use and configuration of features in the Services are User’s instructions to SHOUTCAST for the processing of personal data. As such, the Parties represent that: (i) they will comply with any and all applicable laws, including the GDPR; and (ii) will comply with their respective legal obligations under such applicable laws.
13. APPLICABLE LAW AND JURISDICTION
13.1. These Terms are governed and construed in accordance with the laws of Belgium.
13.2. Any dispute arising out of the validity, interpretation and/or execution of these Terms and its consequences shall be subject to the exclusive jurisdiction of the Commercial Court of Brussels, after an attempt has been made to reach a settlement agreement between the Parties which has remained unsuccessful, notwithstanding the plurality of defendants and warranty claims.
Entry into force: October 2022