Welcome to Omny Studio, a website and on-demand audio publishing platform operated by 121cast Pty Ltd and its Affiliates (“Omny Studio”, “us”, or “we”).
The following Terms of Service (the “Terms”) govern your use of: (a) the websites located at https://omnystudio.com and https://omny.fm/ (collectively, the “Websites”); (b) the Omny Studio software products (including downloadable software products) (the “Software”); and (c) the Omny Studio hosted services (including hosted or cloud-based solutions) (the “Hosted Services”). For the purposes of these Terms, the Websites, the Software and the Hosted Services are collectively referred to as the “Services.”
By requesting to use or using the Services, you acknowledge, represent, and warrant that: (a) you have read and understood these Terms and that you have the authority to act on behalf of any person for whom you are using the Services; (b) that you are at least 18 years old; and (c) that you have the legal power and capacity to enter into these Terms. If you are agreeing to these Terms as an individual, “you” our “your” refers to you individually. If you are agreeing to these Terms as a representative of an entity, you represent that you have the authority to bind that entity and “you” or “your” refers to that entity.
These Terms are binding on any use of the Services provided by Omny Studio and apply to you from the time when you access the Services (the “Effective Date”). If you do not agree with all of these Terms, do not access or otherwise use the Services.
“Advertisement” means all audio promotional content provided by an Advertiser and which is delivered through the Services.
“Advertiser” means any party engaged in purchasing, creating, placing, or utilizing an Advertisement on the Site(s), including advertisers, agencies, ad networks, buyers, ad exchanges and ad servers.
“Advertising Analytics Dashboard” means an interactive analytics tool enabling data navigation and visualization of multiple aspects of your Digital Inventory available through Yield-Op.
“Advertising Revenue” means the advertising revenue received by Omny Studio for the sale of Digital Inventory through the Yield-Op Services, less any third-party advertising technology fees and any taxes that Omny Studio is responsible to withhold for the transaction giving rise to such advertising revenue that are required under a bonafide statute, law, or regulation of a governmental body, agency, or taxation authority with competent jurisdiction.
“Affiliate” means any corporation, partnership or other entity now or hereafter controlling, controlled by, or under common control with Omny Studio; provided, however, that in each case such corporation, partnership or other entity shall be deemed an affiliate of Omny Studio only so long as Omny Studio controls, is controlled by or is under common control with, such corporation, partnership or entity.
“Agreement” means the contract formed between you and Omny Studio when you use the Services, the terms and conditions of which are comprised of collectively these Terms of Service and any schedules (as applicable).
“CCPA” means the California Consumer Privacy Act of 2018, as amended from time to time.
“Confidential Information” means any proprietary information or data, either oral or written, received from one party (the “Disclosing Party”), or created by or proprietary to the Disclosing Party, designated as confidential or that, given the nature of the information and the circumstances surrounding disclosure known to the recipient, would appear to a reasonable person to be confidential. Confidential Information does not, however, include information which (i) is already known by the recipient at the time of disclosure; (ii) is independently developed by the recipient, (iii) is or comes to be in the public domain; or (iv) is received by the recipient from a third party without similar restriction and without breach of this or of a similar section in another agreement with the Disclosing Party.
“Direct Deals” means a pre-negotiated deal between you and an Advertiser with respect to the programmatic buying of Digital Inventory through Yield-Op, including without limitation for (i) participation in an invitation-only auction (first look on inventory) (ii) custom CPM (iii) guaranteed inventory or any combination of these items.
“Digital Inventory” means the online and mobile digital audio inventory made available by you for sale in accordance with the terms of this Agreement.
“Download Event Data” means the individual download event, as processed by Omny Studio.
“End Users” means each individual accessing a Site.
“General Data Protection Regulation” or “GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC.
“Hardware” means any and all hardware and any other type of equipment which you are using in connection with the Services, whether owned by you or a third party, and which is not under the direct control of Omny Studio.
“Intellectual Property” means anything that is or may be protected by any Intellectual Property Right including, without limitation, all software, inventions, algorithms, architecture, class libraries, databases, objects and documentation (both printed and electronic), design, industrial design, hardware design, logos, structure, know-how, business methods, utility models, trade secrets, works, performances, trade-marks (including trade names and service marks), domain names, and Confidential Information, as applicable.
“Intellectual Property Right” means any right, whether registered or not and whether in existence as at the date hereof or in the future, that is or may be granted or recognized under any American, Canadian or foreign legislation regarding patents, copyrights, neighbouring rights, moral rights, trade-marks, trade names, service marks, industrial designs, mask work, integrated circuit topography, privacy, publicity, celebrity and personality rights, on any Intellectual Property, and any other statutory provision or common or civil law principle regarding intellectual and industrial property, whether registered or unregistered, and including rights in any application for any of the foregoing.
“Linked Services” means any third-party website, application and/or platform to which Your Content has been shared or embedded by Omny Studio in accordance with the terms of this Agreement including, without limitation, third-party platforms and/or services where Podcasts and related content are made available (e.g., Spotify, Audacy, Amazon, etc.).
“Member(s)” means an End-User having been assigned by you a unique identification access key to access your restricted content via the Omny Studio Restricted Access service.
“Omny Studio Analytics Data Export” means Omny Studio’s add-on feature which enables you to log and export all individual Download Event Data to your cloud storage system.
“Omny Studio Audio Transcription” means the proprietary platform (a) made available by Omny Studio through its third-party suppliers to you pursuant to this Agreement, (b) accessed through the Omny Studio Portal, and (c) usable by you to enable speech-to-text functionality in the Omny Studio Platform.
“Omny Studio Campaign Manager” means Omny Studio’s advertising campaign management platform.
“Omny Studio Headliner Social Video” means the proprietary software (a) made available by Omny Studio through its third-party suppliers to you pursuant to this Agreement, (b) accessed through the Omny Studio Portal, and (c) usable by you to create audio visualization for podcasts using Your Content including videos, images, text and audio.
“Omny Studio Platform” means the proprietary platform (a) made available by Omny Studio to you pursuant to this Agreement, (b) accessed through the Omny Studio Portal, and (c) usable by you to view, capture, edit, archive, publish and analyze podcasts.
“Omny Studio Portal” means the web application available at the URL https://omnystudio.com by which you can connect to the Omny Studio Platform.
“Omny Studio Restricted Access” means Omny Studio’s add-on feature allowing you to distribute certain clips and playlists to authorized Members only, using a secured URL.
“Omny Studio Share” means for Direct Deals, ten percent (10%) of the Advertising Revenue, and for Yield-Op Open Auction thirty percent (30%) of the Advertising Revenue.
“Omny Studio Video Pre-Rolls” means the proprietary software (a) made available by Omny Studio or its third-party suppliers to you pursuant to this Agreement, and (b) accessed through the Omny Studio Portal.
“Open Marketplace” means the advertising exchange solution enabling any eligible Advertisers to programmatically buy digital audio inventory through Yield-Op and deliver an Advertisement to an End User.
“Personal Information” means information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household, or any other information that is regulated as personal information or personal data under the Rules.
“Podcast” means a digital audio file received or accessed on demand, which may be distributed by digital download, streaming or RSS feed or other similar technology, which allows End Users to receive audio files.
“Podcast Metrics” means the proprietary Podcast audience measurement platform made available to you by Omny Studio pursuant to this Agreement.
“Proprietary Data” means all data created, produced, extracted, compiled, or processed by Omny Studio in connection with your use of the Podcast Metrics or Third-Party Ranker Delivery services. Proprietary Data shall exclude Your Content, Raw Data and Personal Information.
“Ranker” means the listings of the top performing internet Podcasts and networks measured by Podcast Metrics, computed on a monthly basis and published by Omny Studio in various territories.
“Raw Data” means any and all raw data provided directly by you or your Hardware in connection with the Podcast Metrics or Third-Party Ranker Delivery services.
“Rules” means any and all laws, rules, regulations, orders or industry self-regulatory codes that relate to advertising, marketing and the collection, processing, use, protection, interception, disclosure, or storage of Personal Information, including, without limitation, the CCPA and the GDPR.
“Site(s)” means any and all website, mobile application or other platform or property on which Your Content and/or an Advertisement may appear.
“Third-Party Ranker Delivery” means the delivery capability made available to you by Omny Studio to provide your Raw Data to a third party that creates a listing of the top performing internet Podcasts and/or networks, computed on a periodic basis and published by such party in a particular territory.
“Updates” means any and all periodic additions, deletions, or changes to a Software and/or technical documentation provided by Omny Studio to you in connection with this Agreement.
“Video Pre-rolls Advertisements” means all video pre-roll promotional content provided by an advertiser and which is delivered through the Omny Studio Video Pre-Rolls service.
“Your Content” means any and all Podcasts, related data, metadata, files, audio files, attachments, text, images, advertising and other content that you upload or submit to the Omny Studio Platform.
“Yield-Op” means supply side platform (SSP) made available by Omny Studio for yield optimization of digital audio inventory through Open Market and Direct Deals.
“Yield-Op Open Auction” means Omny Studio’s advertising exchange solution enabling any eligible Advertisers to programmatically buy digital audio inventory through real-time bidding and deliver an Advertisement to an End User based on the End User’s digital behavior and past browsing activities or the genre of inventory.
2.1. Ordering Services. You can order Services by registering for an Omny Studio account at https://omnystudio.com. You will be prompted to provide your contact details, including, without limitation, your first name and last name, email address and password. You will be able to authorize one or more people to operate your user account, and to use the Services. You accept responsibility for the actions of each person that you authorize or enable to operate your user account, or to use the Services.
3.1. Licenses granted by Omny Studio.
3.1.1. Omny Studio Software. Subject to the terms and conditions set forth in this Agreement, Omny Studio hereby grants you a limited, revocable, non-assignable, non-transferable, non-exclusive, fee bearing license to install and use the Software for the Term. In respect of such Software:
3.1.2. Omny Studio Hosted Services. Subject to the terms and conditions set forth in this Agreement, Omny Studio hereby grants you a limited, revocable, non-assignable, non-transferable, non-exclusive, fee bearing license to access and use the Hosted Services for the Term. In respect of such Hosted Services:
3.2. Specific Terms & Conditions of Service.
3.2.1. Omny Studio Analytics Data Export. If you opt-in to use the Omny Studio Analytics Data Export service, you hereby acknowledge and agree that: (i) the Download Event Data may only be used for the sole purpose of creating internal digital metrics dashboards and reports for Client’s internal use only and/or audience profiling; (ii) the service includes only the Download Event Data starting as of the date the service is made available to you by Omny Studio; (iii) the service does not include the transmission of reports by Omny Studio to any third party, including copyright collectives, and (iv) Omny Studio does not have any obligation to disclose any aspect of the methodology used in connection with the Download Event Data. NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, YOU ACKNOWLEDGE AND AGREE THAT: (I) THE OMNY STUDIO ANALYTICS DATA EXPORT SERVICE IS PROVIDED ON AN “AS IS” BASIS, WITH ALL FAULTS AND WITHOUT ANY WARRANTY, REPRESENTATIONS OR CONDITIONS OF ANY KIND; AND (II) OMNY STUDIO SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS OF ANY KIND, EXPRESS, LEGAL OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, REGARDING THE OMNY STUDIO ANALYTICS DATA EXPORT SERVICE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, OMNY STUDIO EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT YOUR USE OF THE OMNY STUDIO ANALYTICS DATA EXPORT SERVICE AND THE DOWNLOAD EVENT DATA WILL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS, OR WILL ASSIST WITH, GUARANTEE OR OTHERWISE ENSURE COMPLIANCE WITH ANY APPLICABLE LAWS OR REGULATIONS. YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT YOUR USE OF THE OMNY STUDIO ANALYTICS DATA EXPORT SERVICE AND RELATED COMPONENTS COMPLY WITH APPLICABLE LAW.
3.2.2. Omny Studio Campaign Manager. If you opt-in to use the Omny Studio Campaign Manager service, you hereby acknowledge and agree that you may access and use the Omny Studio Campaign Service Manager for the sole purpose of monetizing Digital Inventory and serve Advertisements to End Users. Furthermore, you hereby represent and warrant that (i) you have all the necessary rights and authorizations to monetize Digital Inventory and serve Advertisements to End Users, and (ii) such monetization does not and will not result in a breach of or violate any third-party right or any term or provision of any agreement to which you are a party.
3.2.4. Omny Studio Restricted Access. If you opt-in to use the Omny Studio Restricted Access service, you may only use the Omny Studio Restricted Access feature to assign a unique identifier and access key to your Members to grant them access to your restricted content. You hereby acknowledge and agree that the Omny Studio Restricted Content Access does not include the storage of any Member information by Omny Studio. As such, you are solely responsible to manage your relationship with the Member. Furthermore, you also acknowledge and agree that Omny Studio may provide you from time to time with certain tools, such as email templates, to facilitate the interaction with the Members. That said, you are solely responsible to ensure that such tools are compliant with applicable laws.
3.2.6. Omny Studio Video Pre-Rolls. If you opt-in to use the Omny Studio Video Pre-Rolls service, you hereby acknowledge and agree that (i) you must use the Omny Studio Video Pre-Rolls service together with a third-party video ad-server; and (ii) notwithstanding anything to the contrary contained in the Agreement, Omny Studio disclaims any and all liability regarding the video ad-server service and the Video Pre-Rolls Advertisements. Furthermore, you are responsible to ensure that you comply at all times with the video ad-server terms of service.
3.2.7. Podcast Metrics. If you opt-in to use the Podcast Metrics service, you hereby acknowledge and agree that (i) except through the Podcast Metrics web-based access the Podcast Metrics service does not include the supply or disclosure of Proprietary Data to you or any third-party; and (ii) Omny Studio is and shall at all time be the owner of all proprietary interests in the Proprietary Data and all materials containing or reflecting Proprietary Data, and you shall at all time be the owner of all proprietary interests in the Raw Data. Subject to the permissions set forth in this Section 3.2.8, Raw Data and Proprietary Data shall constitute Confidential Information for the purpose of this Agreement. During and after the term of this Agreement, Omny Studio agrees not to disclose or publish Proprietary Data or Raw Data to any third party, except: (i) on an aggregate and anonymous basis without your prior written consent; and/or (ii) on a non-anonymous basis with your prior written consent. Notwithstanding the foregoing, Omny Studio may publish and disclose Proprietary Data in one or more Ranker without your prior written consent. You shall notify Omny Studio prior to any change made to Hardware or processes that may affect, directly or indirectly, the measurement output including, without limitation, changes in your content delivery network, Raw Data or listener tracking implementation. Notwithstanding the notification provisions of the Agreement, such notification shall be made by way of email to email@example.com.
3.2.8. Yield-Op. If you opt-in to use the Yield-Op service, you hereby acknowledge and agree that you may access and use Yield-Op and (if applicable) Advertising Analytics Dashboard for the sole purpose of monetizing Digital Inventory and serve Advertisements to End Users through Open Marketplace and/or Direct Deals with Advertisers. Client hereby appoints Omny Studio as a non-exclusive representative for the sale of Digital Inventory to Advertisers through Open Marketplace. You hereby represent and warrant that (i) you have all the necessary rights and authorizations to monetize Digital Inventory and serve Advertisements to End Users through Open Marketplace and/or Direct Deals, and (ii) such monetization does not and will not result in a breach of or violate any third party right or any term or provision of any agreement to which you are a party.
3.2.9. Third-Party Ranker Delivery. If you opt-in to use the Third-Party Ranker Delivery service, you hereby acknowledge and agree that (i) Omny Studio is and shall at all times be the owner of all proprietary interests in the Proprietary Data and all materials containing or reflecting Proprietary Data, and you, and/or, to the extent that you are publishing Podcasts on behalf of another party, such other party, shall at all times be the owner of all proprietary interests in the Raw Data, (ii) you shall communicate to Omny Studio the third-party ranker to which you are seeking to opt-in, (iii) such third-party ranker that you select must be among Omny Studio’s list of proposed rankers, (iv) you may solely select one third-party ranker, (v) once your selection is made, it can, under no circumstances, be changed for the purpose of this Third-Party Ranker Delivery service, (vi) by selecting a third-party ranker, you instruct Omny Studio to process and export the Log Export (as defined in the Third-Party Ranker Delivery Terms) to such third-party ranker, and (vii) where you fail to select a third-party ranker, Omny Studio will be deemed to have received no instructions from you and shall be required to not act until such selection is made.
3.4. Services Removal/Replacement. In the event that, at any time during the Term, Omny Studio elects to no longer provide the Services or a particular aspect thereof to all of its customers, Omny Studio may decide in its sole discretion to either (A) no longer provide to you such Services or aspect thereof, at which point you will no longer be responsible for paying any Fees attributable to such Services or aspect thereof, or (B) replace such Services or aspect thereof with substantially similar Services and/or aspects, for which you shall be responsible for continuing to pay all Fees in accordance with this Agreement. Omny Studio shall provide written notice of any such removal or replacement.
You shall comply at all times with any reasonable service requirement communicated to you in writing by Omny Studio (collectively, the “Minimum Service Requirements”). In the event you use a third-party supplier in connection with the Services, you shall ensure that such third-party supplier complies at all times with the Minimum Service Requirements. You shall promptly and accurately implement any Update provided by Omny Studio during the term of this Agreement within thirty (30) days from Omny Studio’s notification of any such Update.
5.1. License. By uploading or posting Your Content to the Omny Studio Platform, and entering into this Agreement, you hereby grant Omny Studio, Omny Studio’s third-party suppliers and Omny Studio’s designated representatives and agents a limited, non-exclusive, worldwide, royalty-free license to collect, use, copy, store, transmit, display, publicly perform, modify and create derivative works of Your Content as necessary to provide the Services pursuant to this Agreement, and you represent and warrant that you have the right to grant such license and right. You acknowledge and agree that Omny Studio may disclose Your Content to its third-party suppliers and transmit Your Content to and from its third-party suppliers, and You acknowledge and agree that those third-party suppliers can also store and transmit Your Content to provide the Services contemplated by this Agreement.
5.2. Backup and Retention. Although we use backup procedures in relation to our Services, we do not make any representation or warranty that these measures will be effective at all times. We recommend that you keep backups of Your Content. You acknowledge and agree that we have no obligation to retain Your Content following the termination or expiration of this Agreement and that Your Content may be (and in certain cases must be) irretrievably deleted by us any time following the expiry, termination or cancellation of your use of our Services.
You shall be solely responsible for your actions and the actions of your users while using the Services. Unless expressly stated otherwise in this Agreement:
7.1. Acceptable Use. You agree not to use the Services to post, upload, email, transmit, display or make available in any way content or material that:
7.2. No Endorsement. We neither endorse Your Content nor assume any responsibility to monitor, review or edit user or third-party content for any illegal or offensive material contained therein, any infringement of third-party Intellectual Property arising therefrom or any crime facilitated thereby. We reserve the right to remove any content uploaded, posted, stored or transmitted using the Services by you or your users that we reasonably believe contravenes this Agreement and/or any applicable law, without notice to you.
8.2. Processing of Personal Information. You hereby acknowledge that the Services may involve the usage of Personal Information by Omny Studio. You and Omny Studio agree that you are the controller or business (or equivalent terms) with regard to your and/or your End User Personal Information and that Omny Studio is the processor or service provider (or equivalent terms) with regard to such Personal Information. Omny Studio will process Personal Information only on your instructions. You agree that this Agreement along with your’s use and configuration of features in the Services are your instructions to Omny Studio for the processing of Personal Information. As such, each party represents and warrants that: (i) it will comply with any and all applicable Rules, including the CCPA and the GDPR; and (ii) it will comply with their respective legal obligations under such applicable Rules. Omny Studio will only access, use, maintain, store, collect, modify, adapt, merge, analyze, combine, aggregate, share, disseminate, disclose, erase, or otherwise process Personal Information obtained in relation to you or this Agreement solely as necessary for Omny Studio to perform its obligations on your behalf. Namely, you acknowledge that Omny Studio, will use the Personal Information collected from you for the purpose of providing the Services and may (i) disclose such Personal Information to third parties as directed by you in connection with the Services, and (ii) disclose such Personal Information as required by applicable Rules. In addition, Omny Studio may use such Personal Information when it is aggregated with similar information relating to other customers of Omny Studio or such that the specific information relating to you is not identified as such.
8.3. Individual Rights. If you receive a request from an individual pertaining to the exercise of such individual’s rights under applicable Rules (including, by way of example notice, access, opt out and deletion), Omny Studio shall promptly take, at its sole cost, all such actions you may reasonably direct with respect to the Personal Information in Omny Studio’s possession pertaining to the individual’s request. If Omny Studio receives a request directly from an individual, which relates to Personal Information received by Omny Studio in connection with you or this Agreement, Omny Studio will promptly (a) forward the request to you for handling; (b) if requested in writing by you, provide you with copies of documents relating to the request; (c) not refer to you in any correspondence with the requester without your prior written consent; and (d) not disclose any of your Confidential Information without your prior written consent.
8.5. Data Breaches. In the event of any actual or suspected unauthorized access to or acquisition of Personal Information (“Data Breach”), Omny Studio shall inform you in writing of the same within one (1) day of discovery of the Data Breach. Omny Studio shall investigate and remediate the Data Breach and, to the extent that a Data Breach results in a legal obligation on Omny Studio or you to notify impacted individuals or would put impacted individuals at risk, Omny Studio shall provide you with assurances satisfactory to you that a similar Data Breach will not reoccur. Omny Studio agrees to fully cooperate with you in your handling of a Data Breach, including without limitation any investigation, reporting, or other obligations required by applicable Rules, or as otherwise reasonably required by you, and will work with you to respond to and mitigate any damages caused by the Data Breach. Omny Studio shall not notify any third party of the Data Breach without your prior, written authorization. Omny Studio shall be liable for all costs, expenses (including reasonable attorney’s fees and court costs), damages, losses and liabilities (collectively, “Losses”) incurred in responding to and/or mitigating damages arising out of an actual Data Breach, including, without limitation, costs of forensic investigation, regulatory fines, notification costs, credit monitoring, and/or reasonable attorneys’ fees. Notwithstanding any other provision of the Agreement, each party agrees to defend, indemnify and hold harmless the other party and its Affiliates from all Losses arising out of a breach of its privacy or data security obligations under the Agreement, including under this Section 8. For clarity, neither party shall be liable for the Losses of the other party insofar as such Losses would not have occurred but for the breach of such party’s privacy or data security obligations under the Agreement.
Omny Studio provide support in relation to the Services between 8:00 am and 6:00 pm AEST/AEDT Monday-Friday (excluding public holidays recognized in Australia) via chat only.
10.1. Fees. Your online order will set out the fees and other charges payable by you for use of the Services (“Fees”). Fees payable, including but not limited to monthly subscription fees, are subject to change upon thirty (30) days' written notice from us.
10.2. Free Trials. If you have been granted access to the Services pursuant to a free trial offer (“Free Trial”), unless you provide us with valid credit card prior to the conclusion of the Free Trial period, your access to the Services will be cancelled. For clarity, if you have provided us with a valid credit card, your credit card will be charged pursuant to this Section 10 following the conclusion of the Free Trial period.
10.3. Initial fees. If specified in your online order, fees may be payable upfront prior to commencement of the Services. If so, once we have received any applicable initial fees, we will provide you with the applicable license keys and/or login details (as applicable) by sending these to the primary contact email address nominated on the online order.
10.4. Payment terms. You agree to pay all Fees in accordance with this Agreement. We require you to provide valid credit card details in order to make the payment of the Fees. Your credit card will automatically be charged by us for an amount equivalent to the Fees every thirty (30) days following the expiration of the Free Trial period (if any). To the extent permitted by applicable laws, all Fees and any other amounts paid or payable under this Agreement are non-refundable, non-cancellable and not subject to any credits. For the avoidance of doubt, no refunds or credits will be provided for unused Services or in respect of changes in usage levels or usage limits.
10.5. Advertising Revenue. In consideration for the Yield-Op Services, Omny Studio or Omny’s Studio’s Affiliate, Ando Media, LLC (“Ando”) (as applicable), will retain the Omny Studio Share and will remit to you the remaining of the Advertising Revenue (“Your Share”). Under no circumstances shall the Omny Studio Share be less than 0.05 CPM for each impression delivered using the Yield-Op Services. Payment of Your Share will be made by cheque in U.S. Dollars or by wire transfer, at Omny Studio’s or Ando's (as applicable) sole discretion, within thirty (30) days following Omny Studio’s or Ando’s (as applicable) receipt of the complete payment from the Advertiser. If Your Share is paid by check in U.S. Dollars and is less than twenty-five U.S. dollars ($25 USD), or if Your Share is paid by wire transfer and is less than five hundred U.S. dollars ($500 USD), Omny Studio or Ando (as applicable) reserves the right to postpone the payment of Your Share to the following month. Omny Studio provides no guarantee to you of the volume of Digital Inventory sold and Advertising Revenue paid to you under the Agreement. It is understood that Omny Studio and Ando shall be acting as an agent, not as a principal or guarantor, under the Agreement with respect to the sale of Digital Inventory. Accordingly, Omny Studio or Ando shall not be responsible to you for payment of any amounts unpaid by an Advertiser despite follow-up invoices and notices sent by Omny Studio or Ando.
10.6. Insufficient funds. Should your Fee payment to us fail on the specified billing date for whatever reason, we will make the following attempts to charge your credit card at the following intervals: (a) 3 days after first failed attempt; (b) 5 days after second failed attempt; and (c) 7 days after third failed attempt. If we are unsuccessful in procuring payment after 3 attempts, we will suspend your access to paid features of the Services with email notice to you. Any suspension pursuant to this clause will not entitle you to any refund, credit or right to terminate this Agreement.
10.7. No set off. All amounts payable under this Agreement must be paid in full without set-off, deduction or other withholding of any amount. Should you be required by any law or regulation to make any deduction on account of tax or otherwise on any sum payable under this Agreement, the sum payable will be increased by the amount of such tax to ensure that we receive a sum equal to amount to be paid under this Agreement.
10.8. Sales tax. All Fees payable under this Agreement are inclusive of any sales tax, value added tax or goods and services tax that is payable on any supply made under this Agreement by us to you.
10.9. Usage limits. Your online order may specify certain limits (“Usage Limits”) in relation to your use of the Services (such as the maximum number of users and/or certain data, bandwidth or storage limits). If these Usage Limits are exceeded at any time, you agree to pay us any additional fees that are set out in the online order. Such additional fees will be automatically deducted from your nominated bank account via direct debit, if you have authorised us to do so.
10.10. Missed payments. We will automatically charge up to six (6) months’ worth of Fees in one transaction for any missed payments.
11.1. Term. This Agreement shall be effective as of the Effective Date. Either party may terminate this Agreement by sending a thirty (30) day prior written notice to the other party to that effect.
11.2. Termination for material breach. Either party may terminate this Agreement immediately if the other party breaches any material provision of this Agreement and fails to cure its breach within thirty (30) days after receiving the other party’s written notice by email identifying the breach. A breach of this Agreement by one of your users shall be deemed a breach of this Agreement by you. In addition, Omny Studio may suspend or terminate, in its sole discretion, your access to the Services immediately if (a) you fail to make a payment; and/or (b) you have (or Omny Studio reasonably suspects that you have) breached, misappropriated or infringed Omny Studio’s Intellectual Property Rights. Any suspension or termination of the Agreement pursuant to this section will not entitle you to any refund or credit.
11.3. Insolvency Event. Either party may terminate their obligations pursuant to this Agreement at any time immediately, or at such later date as that party chooses, by written notice to the other party if the other party is subject to an Insolvency Event. In this Agreement, “Insolvency Event” means in relation to a party, where that party becomes subject to any form of insolvency administration; ceases to carry on business; ceases to be able to pay its debts as they become due; any step is taken by a mortgagee or chargee to take possession or dispose of the whole or part of the that party's assets, operations or business; any step is taken to enter into any arrangement between that party and its creditors; or where any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a provisional liquidator, a liquidator, an administrator or other like person in respect of the whole or part of that party's assets, operations or business.
11.4. Effects of Termination. Termination of this Agreement will result in the cancellation of your access to the Services and the deletion of Your Content that you or your users have uploaded in the course of using the Services. We are not responsible for any loss suffered by you or any third party as a result of our deletion of Your Content pursuant to this clause. Upon termination or expiration of the Agreement for any reason, you and your users must cease all use of the Services. Within thirty (30) days after termination or expiration of the Term, you must, at our election, either destroy or return to us all copies of the software, documentation and our Confidential Information then in your possession, custody or control.
12.1. Ownership. Each party is and shall continue to be the sole and exclusive owner of all its Intellectual Property, and Confidential Information. 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 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 to the Intellectual property or property of the other party.
12.2. Business Name and Logo. You hereby grant Omny Studio a non-exclusive, worldwide, royalty-free and irrevocable license to place and remove your business name, logo and industry type on the Omny Studio website and any of Omny Studio’s marketing collateral. This Agreement does not grant you the right to use any of our branding or logos, whether for commercial or non-commercial use.
12.3. Feedback and Other Data. If you or any of your users provide us with any suggestions, questions, requests, comments or ideas in relation to the Services (“Customer Feedback”), you agree that, unless you tell us otherwise in writing, we may (but have no obligation to) use, exploit, reproduce and disclose that Customer Feedback (including any Intellectual Property Rights or other proprietary rights which may exist in that Customer Feedback) in any way whatsoever, without any restriction or any obligation to you, and without any obligation to pay you any royalty, fee or any other amount. We may compile statistical, usage and performance information (which, if it contains Personal Information, is fully anonymized and aggregated information) related to the provision of the Services including the general characteristics of the material uploaded by you in the course of your use of the Services. We may use that information and material to improve our Services, as reasonably required for benchmarking and analysis, to create new products and services, and for marketing purposes. We will only use information and material that does not identify you for this purpose.
12.4. Copyright Complaints. Omny Studio takes Intellectual Property seriously. In accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable laws, we have adopted a policy of terminating, in appropriate circumstances and, at our sole discretion, access to the Services for users who are deemed to be repeat infringers. View our copyright policy.
13.1. Common Representation and Warranties. Each party represents, warrants and covenants to the other party that: (i) it has the necessary power, authority and capacity to perform its obligations under this Agreement; and (ii) that this Agreement has been duly executed and delivered by such Party and is a valid and binding obligation enforceable against it in accordance with its terms.
13.2. Omny Studio’s Representation and Warranties. Omny Studio represents and warrants that, to Omny Studio’s knowledge, as of the Effective Date of the Agreement, the Services do not violate any Intellectual Property Rights and there are no pending or threatened suits, actions or proceedings against Omny Studio that would affect the provision of Services.
13.3. Your Representations and Warranties.
13.3.1. General. You hereby represents and warrants that: (i) the execution of the Agreement by you, performance hereunder by you and the grant of rights to Omny Studio hereunder do not and will not result in a breach of or violate any third-party right or any term or provision of any Agreement to which you are a party; and (ii) you will use the Services in compliance with all applicable laws, rules and regulations (including the Rules).
13.3.2. Invalid Traffic. You hereby represents and warrants that (i) you will diligently monitor your audience streaming traffic to ensure that you are not accruing invalid traffic; and (ii) you will not purchase any listening sessions including by using automated clicking tools or traffic sources, robots, or other deceptive software. In the event you become aware of any breach to your obligations pursuant to this Section, you shall immediately send Omny Studio a written notice to this effect and you shall immediately remediate such breach.
13.3.3. Ad Fraud. You hereby acknowledge and agree that impressions on Advertisements must result from natural End User listening behavior and that any method that automates the generation of impressions is strictly prohibited by Omny Studio. As a result, you shall not engage in any activity, whether directly or indirectly through a third-party supplier, that may automate the generation of Impressions including, without limitation, the following activities: (i) generate Impressions by starting listening sessions or making On-Demand ad requests; (ii) encourage third parties to play the Advertisements or use deceptive implementation methods to obtain Impressions, this includes, without limitations, offering compensation to End Users for playing Advertisement; and (iii) use automated tools or traffic sources, robots, or other deceptive software (collectively, “Ad Fraud Activities”). In the event Omny Studio suspects any Ad Fraud Activities through your use of the Services, Omny Studio may immediately suspend or disable the Services for an indefinite duration. Omny Studio agrees to restore the Services upon determining that (a) either (i) there was not any Ad Fraud Activities, or (ii) you have ceased any suspected Ad Fraud Activities; and (b) you have provided assurances acceptable to Omny Studio that there shall be no future Ad Fraud Activities.
13.4. Disclaimer of Warranties. EXCEPT FOR WARRANTIES EXPRESSLY MADE IN THIS AGREEMENT, YOU ACKNOWLEDGE AND AGREE THAT ALL SERVICES PROVIDED AND SOFTWARE USED BY OMNY STUDIO 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 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.
14.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE, UNDER OR IN RELATION TO THIS AGREEMENT, 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 OMNY STUDIO BE LIABLE TO YOU FOR: (I) DIRECT DAMAGES OR LOSSES RESULTING FROM ANY THIRD PARTY NOT HIRED DIRECTLY BY OMNY STUDIO, (II) DAMAGES OR LOSSES CAUSED BY YOU, OR YOU EMPLOYEES, AGENTS OR SUBCONTRACTORS; OR (III) ANY FINES OR PENALTIES ASSESSED FOR YOUR FAILURE TO COMPLY WITH ANY LAW OR GOVERNMENTAL REGULATIONS (INCLUDING THE RULES).
14.2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OMNY STUDIO’S TOTAL AGGREGATE LIABILITY FOR ALL CLAIMS UNDER OR IN RELATION TO THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL AMOUNT OF FEES PAID BY YOU TO OMNY STUDIO UNDER THIS AGREEMENT. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO: (A) CONFIDENTIALITY OBLIGATIONS; OR (B) WILLFUL MISCONDUCT, FRAUD OR GROSS NEGLIGENCE.
Subject to the limitations of Section 14.2, 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 this Agreement. 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. Omny Studio will have no liability for any claim under this Section 15 arising out of: (i) modifications to a Service or any related software other than modifications made by Omny Studio; (ii) the use or combination of the Services or any related software with non-Omny Studio programs, data or equipment, where the Services and related software alone would not have given rise to the claim; (iii) your continued use the Services or any related software for which Omny Studio has provided you with modification, replacement or Update if the use of such modified or updated Services or related software would have prevented the claim; (iv) your use of a Service or related software in breach of this Agreement; or (v) your continued use, distribution or sublicensing of a Service or related software after receipt of a notice from Omny Studio describing claim under this Section 15 alleging that a Service or any related Software infringes any third party’s Intellectual Property Rights.
Each party shall (i) take all reasonable measures to protect the secrecy of and avoid disclosure or use of the Confidential Information of the other party in order to prevent it from falling into the public domain or the possession of any third party that is not authorized to have such information, including, but not limited to, the highest degree of care that the receiving party utilizes to protect its own Confidential Information of a similar nature, which will be no less than reasonable care; (ii) not use or disclose such Confidential Information except in connection with the purposes of this Agreement, unless authorized in writing by the other party or compelled by an order of a court of competent jurisdiction; (ii) not disclose or permit disclosure of any Confidential Information of the other party to third parties, or to employees of the other party receiving Confidential Information, other than directors, officers, employees, consultants, and agents who are required to have the information in order to carry out the purposes of this Agreement. All materials containing the other party’s Confidential Information shall be destroyed or returned to such party, as instructed by such party, by the recipient promptly upon request. You shall immediately notify Omny Studio of any unauthorized use or security breach of Confidential Information as soon as you become aware of any such unauthorized use or breach.
This Agreement shall constitute the entire agreement between the parties regarding its subject matter and supersedes any and all prior and contemporaneous agreements, negotiation or discussion, whether oral or written. This Agreement may not be changed except by a written amendment signed by both parties. Any notices and requests provided for in this Agreement shall be (i) in writing; (ii) sent by email (with confirmation of reception), facsimile, prepaid courier or registered mail to the other party. All notices and requests which do not comply with these conditions shall be held incomplete or invalid. All notices to Omny Studio shall be delivered via email to firstname.lastname@example.org. This Agreement shall be construed and interpreted according to the laws of the state of Victoria, Australia, without giving effect to conflicts of laws principles. The parties agree that any and all actions arising from this Agreement shall be brought in the State and Federal courts sitting in Victoria, Australia and hereby submit themselves unconditionally and irrevocably to the personal jurisdiction and venue of such courts. This Agreement shall not be assigned by you without the prior written consent of Omny Studio, which shall not be unreasonably withheld. This Agreement may be signed in counterparts and the signatures delivered by facsimile transmission or by electronic mail, each of which shall be deemed to be an original, with the same effect as if the signatures thereto were upon the same instrument and delivered in person. Each and all the provisions of Sections 12 (Intellectual Property), 14 (Limitation of Liability), 16 (Confidentiality Obligation) and any other provision of this Agreement which by its nature shall survive the expiration or termination of this Agreement.