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        TuneIn Broadcaster Advertising Terms and Conditions

         

          1. Subject Matter; Capitalized Terms
            1. Subject to these terms and conditions (“Terms and Conditions”), TuneIn shall display the Advertising Content specified in each Purchase Order (“Advertising Content“) and Advertiser shall pay the Fees as further set out in each relevant Purchase Order (such Purchase Order and the Terms and Conditions together, the “Agreement”).
            2. If there is any inconsistency or conflict between a Purchase Order and these Terms and Conditions, the terms of the Purchase Order shall prevail to the extent of such inconsistency or conflict.
            3. Capitalized terms not expressly defined in these Terms and Conditions shall have the meaning assigned to them in the Purchase Order.
            4. TuneIn and Advertiser are individually referred to as a “Party” and together the “Parties”.
          2. TuneIn Obligations
            1. TuneIn will display the Advertising Content (provided by Advertiser in accordance with Section 3) in the Placement Location and from the Start Date until the End Date set out in the Purchase Order (as further specified in Annex 1 to the Purchase Order).
            2. From the Start Date until the End Date set out in the Purchase Order, TuneIn will display the Advertising Content with a monthly average availability of [98%]. Expressly excluded from this are necessary maintenance downtimes as well as any disruptions which remain outside TuneIn’s sphere of influence (in particular any unavailability due to reasons beyond TuneIn’s reasonable control). TuneIn will inform Advertiser about any scheduled maintenance downtime via e-mail where reasonably practicable. However, TuneIn expressly reserves the right to carry out unannounced maintenance and servicing work to the extent deemed necessary by TuneIn (e.g. for urgent matters such as those related to data and operational security).
            3. TuneIn makes no express or implied warranty or representation that the Placement Locations will be free from defects or technical errors.
            4. TuneIn may subcontract any of its obligations under this Agreement to third party agents and assistants.
          3. Advertiser Obligations
            1. Provision of Advertising Content and Acceptance
              1. Advertiser ensures that all Advertising Content complies with the specifications set out in Annex 1 to the Purchase Order and will provide TuneIn with the Advertising Content at least ten (10) business days (being a day other than Saturday, Sunday or a public holiday in the territory in which the Advertiser is located, as shown on the Purchase Order) (“Business Day“) prior to Start Date set out in the Purchase Order.
              2. Immediately after the Start Date set out in the Purchase Order, Advertiser shall: (a) examine the Advertising Content for its compliance with the applicable requirements set out in this Agreement; and (b) notify TuneIn of any non-compliance with such requirements within one (1) Business Day. After expiry of this period, the display of the Advertising Content shall be deemed to have been accepted by Advertiser.
            2. Compliance and Non-Infringement of Advertising Content
              1. Advertiser warrants  that all Advertising Content complies with the specifications set out in Annex 1 to the Purchase Order, all applicable laws and regulations, orders, codes of practice, guidance and adjudications of any advertising regulatory authority, from time to time, which are applicable to the performance of Advertiser’s obligations under this Agreement and does not infringe third party rights of any kind. In particular, Advertiser shall design all Advertising Content in such a way that it is clearly recognisable as advertising and that it may not be understood in any way as misleading with a view to its advertising purpose. Advertiser will inform TuneIn in writing without undue delay if it becomes aware of any indication of potential non-compliance of any Advertising Content with this Section 3.2.
              2. Advertiser further warrants that the Advertising Content:
          1. will not be not be defamatory, libellous, obscene or otherwise offensive;
          2. will not be prejudicial to the image or reputation of the Placement Locations from time to time;
          3. will comply with any guidelines issued and as notified by TuneIn from time to time;
          4. will be free from viruses and will not adversely effect the operation of the Placement Locations from time to time.
              1. TuneIn may at any time in TuneIn’s discretion and without liability to the Advertiser reject Advertising Content or remove or deactivate the display of Advertising Content in case of indications that the relevant Advertising Content:
          1. does not comply with the specifications set out in Annex 1 to the Purchase Order;
          2. does not comply with Section 3.2.1 or Section 3.2.2;
          3. infringes third party rights; and/or 
          4. otherwise materially impairs TuneIn’s reasonable interests.

        TuneIn will inform Advertiser of such rejection, removal or deactivation via e-mail as soon as reasonably practicable, setting out the reasons in reasonable detail. If (i) Advertiser provides TuneIn with new or modified Advertising Content (compliant with this Section 3.2) or (ii) the issues leading to the rejection, removal or deactivation cease to exist, then TuneIn will use best endeavours to display the relevant Advertising Content without undue delay, time not being of the essence. For the avoidance of doubt, if (following receipt of an e-mail from TuneIn regarding rejection, removal or deactivation of Advertising Content): (y) the Advertiser fails to provide new or modified Advertising Content (compliant with this Section 3.2); or (z) the issues leading to such rejection, removal or deactivation continue to exist, then TuneIn will have no obligation to continue to display the relevant Advertising Content. Advertiser’s obligation to pay the Fees in accordance with Section 6 shall remain unaffected by any measures TuneIn takes in accordance with this Section 3.2.3.

              1. Advertiser will indemnify and hold harmless TuneIn (including its officers, directors, employees, agents and assistants) from any and all claims, lawsuits, losses, damages, costs and/or fines (including expenses for their legal defence) asserted against TuneIn (or its officers, directors, employees, agents and assistants) arising as result of or in connection with any third party due to the non-compliance of any Advertising Content with the terms of this Section 3.2 or any applicable law or regulation or any infringement of any third party right.
          1. Grant of Rights

        Advertiser grants to TuneIn the worldwide, non-exclusive, sublicensable, fully paid-up right to reproduce, distribute, publicly display, publicly perform, transmit, communicate to the public, and otherwise store, process, use and exploit the Advertising Content, and any other logos, branding, trade-marks and other materials provided to TuneIn by the Advertiser, during the term of this Agreement for the purpose of executing the Agreement.

          1. Reporting

        TuneIn will provide Advertiser with reports on the display of the Advertising Content as set out in the Purchase Order.

          1. Fees

        In consideration of the display of the Advertising Content, Advertiser will pay to TuneIn the Fees set out in the Purchase Order. Unless provided otherwise in the Purchase Order, payment of the Fees shall be due within thirty (30) Business Days upon receipt of an invoice setting out Advertiser’s full legal name, post address, VAT ID (if applicable), date, unique invoice number, applicable VAT rate and amount and TuneIn’s bank account.

          1. Term and Termination
            1. Agreement commences on the date of conclusion of the respective Purchase Order and ends on the End Date set out in the Purchase Order unless terminated earlier in accordance with this Section 7.
            2. The Agreement may be terminated in accordance with the terms of the Purchase Order. 
            3. Without prejudice to any termination rights of either Party set out in the Purchase Order, either Party shall have the right to terminate the Agreement with immediate effect if:
              1. the other Party commits a material breach of any term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of seven (7) days after being notified in writing to do so;
              2. the other Party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
              3. the other Party fails to comply with applicable laws, regulations, regulatory policies, guidelines or industry codes which may apply from time to time to the Agreement;
              4. the Advertiser fails to pay any amount due under the Agreement or the applicable Purchase Order on the due date for payment and remains in default not less than seven (7) days after being notified in writing to make such payment; or
              5. the other Party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction.
            4. Without prejudice to any other right of either Party, in case of an early termination, Advertiser is obligated to pay to TuneIn a pro-rata share of the Fees relating to the time during which TuneIn has displayed the Advertising Content in accordance with the Agreement up until the effective date of the termination.
          2. Liability
            1. Nothing in this Agreement limits any liability: (i) which cannot legally be limited, including liability for death or personal injury caused by negligence or for fraud or fraudulent misrepresentation; or (ii) under the indemnities in this Agreement.
            2. Neither Party shall be liable for any lack of commercial success, lost profits or special, consequential or indirect damages.
            3. Subject to Sections 8.1 and 8.2, TuneIn’s total liability to Advertiser, whether in contract, tort (including negligence), for breach of statutory duty, misrepresentation, restitution or otherwise, arising under or in connection with: (a) this Agreement shall be limited to an amount equal to the total Fees paid by the Advertiser; or (b) an individual Purchase Order shall be limited to an amount equal to the total Fees paid by the Advertiser under that Purchase Order.
            4. Except as otherwise expressly set out in this Agreement, all provisions, warranties and terms implied by statute, common law, collaterally or otherwise in respect of the services provided by TuneIn are hereby excluded. 
          3. Changes
            1. Changes to TuneIn websites and apps
              1. TuneIn is entitled to add additional features or functionality to its websites or apps (which may affect the display of the Advertising Content to the benefit of Advertiser) at any time. Unless otherwise agreed between the Parties, additional features or functionality introduced by TuneIn to its websites or apps after the Start Date set out in the Purchase Order (that affect the display of the Advertising Content to the benefit of Advertiser) shall be deemed to be provided free of charge. TuneIn is entitled to discontinue such additional features or functionality at any time at its discretion. TuneIn also reserves the right to offer additional features or functionality of its websites or apps (that affect the display of the Advertising Content to the benefit of Advertiser) against payment of additional fees or other compensation only, which shall be agreed in an additional Purchase Order (to which these Terms and Conditions shall also apply).
              2. TuneIn may change or limit the scope of functionality, or to vary the content, layout or format of its websites or apps (which may affect the display of the Advertising Content to the detriment of Advertiser), at any time where such changes only detrimentally affect the display of the Advertising Content in a form and manner which TuneIn reasonably deems to be immaterial (including, without limitation, mere changes to the design or presentation that do not materially impair the display of the Advertising Content) or if such changes or limitations become necessary:
          1. for reasons of safety or security (including of the IT infrastructure of TuneIn);
          2. due to changes in applicable statutory or case law, regulations, orders, codes of practice, guidance and adjudications of any advertising regulatory authority, from time to time; or
          3. due to similar important reasons that, after weighing them against the legitimate interests of Advertiser, are deemed to be reasonable by TuneIn.

        Subject to Section 9.1.3, any change or limitation of TuneIn’s websites or apps shall neither detrimentally affect (x) any components of the display of the Advertising Content which TuneIn deems to be material nor (y) TuneIn’s main contractual obligations under the Agreement.

        If a change to TuneIn’s websites or apps (that affects the display of the Advertising Content to the detriment of Advertiser) does not exclusively concern time-critical security updates, additional features or components deemed to be immaterial parts of the display of the Advertising Content, TuneIn will notify Advertiser of the respective change at least one (1) month before such change becomes effective.

              1. TuneIn is also entitled to make changes or limitations to its websites or apps (that affect the display of the Advertising Content to the detriment of Advertiser) other than the changes set out in Sections 9.1.1 and 9.1.2. In this case, TuneIn will notify Advertiser of the intended changes at least two (2) months prior to the changes becoming effective. If Advertiser objects to the changes, TuneIn has the right, in its sole discretion, to either: (a) continue to display the Advertising Content without the intended changes, so there is no material impact on the Advertiser; or (b) terminate the Agreement or the respective Purchase Order by giving thirty (30) days prior written notice.
            1. Amendments to these Terms and Conditions
              1. TuneIn may amend these Terms and Conditions on notice to the Advertiser (specifying its intended amendments) as soon as reasonably practicable prior to the amendments becoming effective and request that Advertiser either accepts or rejects the intended amendments. If Advertiser does not reject the relevant amendment(s) within one (1) week of being notified to do so by TuneIn, the amendment(s) will be deemed to have been accepted. TuneIn will make Advertiser aware of the date on which the amendment(s) will become effective in the aforementioned notification.
              2. The Parties may otherwise agree to vary this Agreement by mutual agreement in accordance with Section 11.2.
          1. Confidentiality
            1. For the term of the Agreement and a period of two (2) years after the end of such term, any and all information, know-how or documentation that is either labelled as confidential or must be deemed confidential due to its nature or the means of its disclosure (“Confidential Information”) that is disclosed or otherwise made available by one Party (“Disclosing Party“) to the respective other Party (“Receiving Party“) shall be kept confidential by the Receiving Party. 
            2. The Receiving Party shall not 
          1. forward or otherwise make available the Confidential Information to any third party, 
          2. use the Confidential Information for purposes other than the purposes of this Agreement or 
          3. make the Confidential Information subject of any industrial property rights applications without approval of the Disclosing Party.
            1. The Receiving Party will take all reasonable steps and necessary precautions to prevent any use or disclosure of the Disclosing Party’s Confidential Information contrary to this Agreement. 
            2. The Receiving Party may disclose the Confidential Information only to its employees if and to the extent the respective employees have entered into a commitment with the Receiving Party in an adequate way and under terms and conditions which are equal to the confidentiality obligation set out in this Agreement and which prohibit an unauthorized use and disclosure of the Confidential Information of the Disclosing Party. To the extent employees of the Receiving Party to whom the Confidential Information were disclosed are leaving the Receiving Party, the Receiving Party will ensure that the Confidential Information is covered by a valid post-contractual confidentiality obligation.
            3. The Receiving Party may disclose the Confidential Information to the Parties’ respective auditors, professional advisors or insurance carriers subject to the arrangement of appropriate contractual or statutory confidentiality obligations, and who have a need to know such Confidential Information.
            4. The Receiving Party shall notify the Disclosing Party in writing without undue delay if it becomes aware of any unauthorized use or disclosure of the Confidential Information of the Disclosing Party and shall, upon the request of the Disclosing Party, take all reasonable measures to prevent another unauthorized use or disclosure of the Confidential Information of the Disclosing Party.
            5. The foregoing obligations of the Receiving Party shall not apply to any such information which:
          1. was public knowledge at the time of its receipt or subsequent thereto becomes public knowledge through no fault of the Receiving Party;
          2. has already been known by the Receiving Party at the time of its receipt;
          3. was made available to the Receiving Party by a third party without any obligation to keep it confidential and not to use it;
          4. has to be disclosed to public authorities by law or court order, provided that the Receiving Party promptly informs the Disclosing Party of such disclosure obligation in order to enable the Disclosing Party to take reasonable steps to prevent that any such Confidential Information becomes publicly available; or
          5. has been developed by the Receiving Party independently and without violation of this Agreement.
            1. At the request of the Disclosing Party or upon expiry or termination of this Agreement, for whatever reason, the Receiving Party shall either return all copies of the documents and other records which contain Confidential Information to the Disclosing Party or destroy the Confidential Information upon written request of the Disclosing Party. Exceptions hereto are copies which the Receiving Party must maintain by virtue of law. Within thirty (30) days after the request or the expiry or termination of this Agreement, the Receiving Party shall confirm compliance with this provision in writing to the Disclosing Party.
            2. In case of any conflict between the provisions of this Section 10 and provisions of any other confidentiality or non-disclosure agreement between the Parties which also governs the use and/or disclosure of Confidential Information disclosed in the context of this Agreement, the provisions of such other confidentiality or non-disclosure agreement shall take precedence.
          1. Miscellaneous
            1. Each party acknowledges that it has entered into this Agreement in reliance only on the representations, warranties, promises and terms contained in this Agreement and, save as expressly set out in this Agreement, neither party shall have any liability in respect of any other representation, warranty or promise made prior to the date of this Agreement unless it was made fraudulently.
            2. Any amendment of this Agreement must be in writing, including any waiver of this written form requirement.
            3. The Parties intend to create an independent contractor relationship and nothing contained in this Agreement will be construed to make the Parties partners, joint venturers, partners, principals or agents of each other. Neither Party has any right, power or authority, express or implied, to bind the other.
            4. This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be exclusively governed by and construed in accordance with the laws of England and Wales. The parties irrevocably agree that the English courts shall have exclusive jurisdiction to settle any dispute or claim (whether contractual or non-contractual) arising out of or in connection with this Agreement, its subject matter or formation.