General Terms of Contract

for the service contracts of FitRadio Kft. (Service Provider) related to music broadcasting service activities (hereinafter referred to as “Fitradio GTC” or “GTC”)

Definitions:

Service Provider:

FitRadio Szolgáltató Korlátolt Felelősségű Társaság

Registered address: 8600 Siófok, Béri Balog Ádám utca 47. földszint 12.

Company registration number: Cg.14-09-316378

Registering Authority: Court of Registry of Kaposvár

Company statistical code: 24971582-6010-113-14.

Tax registration number of the Company: 24971582-2-14

Executive officer entitled for representation: Máté Szabolcsi, managing director

Contact information of the Service Provider, the regularly used electronic mail address to maintain contact with the Users: info@fitradio.hu

Owner of the Music: music pieces used by the Service Provider the rights related to which are managed by Artisjus.

Programs: radio channels assembled by the Service Provider

Technical Equipment: indoor unit and cables used to connect the same, as specified in Section 3 of the Service Contract

Service Fee: monthly fee determined in the Contract that means the fee payable for every calendar month.  The Service Fee is payable via wire transfer, pursuant to the GTC. In case of late payment of the service Fee, the Service Provider becomes entitled to charge default interest and compensation for expenses pursuant to the GTC; the Service Fee includes the usage fee of the Service Provider’s online platform for the duration of the Contract.

Online platform: the platform used for the operation

Contract: individual written agreement entered into between and by the Service Provider and the Client, of which the present General Terms of Agreement are inseparable part. 

The Service:

Based on the contract to be entered into by the parties (hereinafter: “Contract”), FitRadioKft. (hereinafter: “Service Provider”) provides access to its clients (hereinafter “Client”) via the equipment provided by the Client to the music packages Program assembled by the Service Provider solely under direct copyright management. Assembly and update of the Programs is the obligation of the Service Provider. The Service Provider shall inform the Client on the contents of the individual Programs, as well as on the conditions of use, and the Client shall certify by signing this Contract that the above information was provided. The Service Provider is obliged to ensure pursuant to the provisions of the Contract that the service is suitable for use for the entire duration of the contract.

The technical equipment:

All damages and expenses due to the use of the online platform other than Permitted Use (including the costs of fault elimination, repairs and maintenance) shall be borne by the Client.  

In case of any failure of the online platform, the Client is obliged to immediately notify the Service Provider. The Service Provider is obliged to repair the fault at its own expense. VAT-excluded drop-off fee is 15,000 HUF/occasion, plus VAT-excluded 90 HUF/km from the Service Provider’s premises to the location of the Service, and for the return trip. 

In case of any failure, the Client may notify the Service Provider by sending email or via telephone, in such case the Client will be exempt from the payment of potential drop-off fee.

The Client acknowledges that the online platform is owned by the Service Provider. The online platform can solely be used pursuant to the Service Provider’s instructions in connection with the operation of the Technical Equipment. Should the Client use the online platform for purposes other than its intended purpose, perform activities to decipher the source code of the Software, provide or contribute to providing unauthorized access to the Software for any purpose to any third party or make copies of the Software, such actions shall be considered as material breach of the Contract. In the above cases, the Client shall be obliged to pay 500,000 HUF single-amount penalty to the Service Provider, whereas the Service Provider will remain entitled to enforce against the Client its loss above the amount of the penalty. In case of the above breach of the contract, the Service Provider will also be entitled to terminate the contract with immediate effect.

The Client warrants that within the site of the operation or in other adjacent rooms or areas, where the Technical Equipment are located, no third person has any right that would in any way prevent the Service Provider’s access to the Technical Equipment, the continuity of the Service and its uninterrupted use.   In case, if the Service Provider’s access to the Technical Equipment is subject to the consent of any third person, then the Client is obliged to certify the existence of such consent by presenting a full probative private document prior to the commencement of the Service. In the lack of such evidence, the Service Provider is entitled to terminate the Contract with immediate effect.

Operation of the Service. Exclusivity

The Contract is only valid and effective for the service location specified therein; for other locations managed by the Client, new contracts will have to be executed. 

During Service location business hours (for customers), the Client is obliged to ensure uninterrupted, regular operation and use of the Service. The Client may only alter the Service Location with the Service Provider’s preliminary written consent, may relocate the available technical equipment solely with the Service Provider’s preliminary written consent, and may not allow third parties to relocate the above. The Client may not shut down the technical equipment used for the provision of the service without the Service Provider’s written consent and may not allow third parties to do the same.  

The Client obliges itself to grant exclusive right to the Service Provider for the provision of the service described in the Contract. During the term of the Contract - in line with the exclusiveness described above - the Client agrees not to use the same or similar services provided by third persons, and will not allow or tolerate - either by active or passive behavior - the installation of equipment of third parties providing such services.  

The Client shall tolerate inspections of full performance of the contractual obligations by the Service Provider - without disturbing the Service Location and its customers - at least on two occasions per month, at times agreed in advance with the Client. 

In case of violating the provisions set forth in this section, the Client shall be obliged to pay penalty to the Service Provider. Amount of the penalty is equal to the amount that would have been made as net advertising revenue in case of a contract made for a 1 (one) year definite period, but at least 300,000 HUF (Three hundred thousand forints).  In addition to the above, the Service Provider may also claim compensation for losses exceeding the amount of the penalty. 

Charge payment

Unless otherwise agreed by the Parties, the Client is obliged to pay System Entry Fee and Service Fee to use the Service. System Entry Fee is a one-time fee, whereas Service Fees are payable on quarterly basis. Effective date of the fee payment periods is the first day of the subject matter period. Fulfillment of the first fee payment obligation is due within 8 days after receiving the invoice sent to the Client by the Service Provider following the creation of the user account.

Unless otherwise agreed separately by the parties, the Client shall pay the Service Fee based on the Service Provider’s invoice, via wire transfer to the Service Provider’s following bank account within eight (8) days as of the invoice date:  Erste Bank 11600006-00000000-83921690. Regardless to the payment method, the amount of the Service Fee is considered paid, when the amount in question is credited to the Service Provider’s bank account.

In case of delayed payment by the Client,  the amount of the default interest payable for the capital amount from the expiry date until the payment date is the interest specified in Section 6:155 (1) of the Hungarian Civil Code (Ptk.).  In addition to the default interest, the Client shall also be obliged to reimburse to the Service Provider all costs and damages incurring in connection with the payment reminders, including in particular the amount of the collection overhead cost pursuant to Act IX of 2016.

In connection with the Service Provider’s music of directly managed rights, the Client shall pay to direct right management associations royalty payable for the public performance to the holders of related rights.  

The Service Provider shall grant official access to the Programs within 3 working days after the Service Fee was credited to its bank account.  Once a year, the Service Provider is entitled to unilaterally raise the amount of the Service Fee by the rate of the consumer price index (inflation) officially published by the Central Statistical Office (KSH) for the previous year.   Such increase of the Service Fee becomes effective as of January 1 of the year in question. The Service Provider will only be entitled for additional fee increase in case, if new channels are added to the Programs compared to the existing ones, or the fee of the broadcast Programs payable by the Service Provider increases above the inflation, or the costs of broadcasting the Programs increase.  Such increase of the Service Fee not related to the inflation shall be communicated by the Service Provider to the Client in (electronic or postal) letter at least 30 days prior to the effective date of the planned prices increase. In this latter case, the Client may terminate this Contract after receiving the notification until the effective date of the price increase.  Payment by the Client of the price increase not related to the inflation shall be regarded as acceptance of such amendment of the Contract by the Client.

Termination

In addition to termination regulated in the Contract and in the present GTC, in case of material breach of the contract both Parties are entitled to terminate the Contract with immediate effect by sending to the other Party a written statement and explanation. Cases of material breach of the Contract include, but are not limited to the following:

-  the Client violates the provisions related to the exclusiveness or to uninterrupted play of music (advertisement) regulated in the Contract; 

- liquidation, bankruptcy or other proceeding resulting in the termination of the company without legal successor is initiated against the other party; 

- Programs are not accessible for an uninterrupted period of 30 days for reasons attributable to the Service Provider, and the Service Provider fails to restore the service provision within 10 days following the Client’s written reminder; 

- the Client submits false data, or otherwise violates its data provisioning obligations;

- The Client falls in delay exceeding 30 days with the fulfillment of any of its payment obligations.

- the Client fails to use the online platform, the Application contractually, damages it or grants unauthorized access to third persons;

- the Client performs activities to decipher the source code of the Software or grants unauthorized access to the Software for third persons;

- Programs are not accessible for reasons attributable to the Service Provider, and the Service Provider fails to restore the service provision within 10 days following the Client’s written reminder;

Copyright, royalties:

The Parties record that the Service Provider, as user obliged to pay fees for broadcasting or otherwise delivering to the public audio recordings released for commercial purpose and their copies (audio records) pays to the competent copyright management associations the fees payable for the use as described above, based on a separate agreement.

The Parties record and the Client explicitly acknowledges that under the present Contract the Service Provider has no further fee payment obligation; payment of all additional fees arising from and related to the fulfillment of the Contract and of the use - based on the copyright laws (especially the Szjt.) is the obligation of the Client, which the Client explicitly agrees to delivery by signing this Contract.

As detailed above, in connection with the Service Provider’s music of directly managed rights, the Client shall pay to music rights management associations royalty payable for the neighboring rights of the public performance to the holders of copyright, and the Service Provider is not bound by any obligation or responsibility regarding these fees.

In case, if a music item or visual work represented by right management associations and subject to mandatory collective copyright protection sounds/appears (e.g. on television, radio, music box or player) in any of the service locations/premises/sites listed above, after which item or work royalties are payable, or another activity is performed, which - pursuant to the related legal provisions, to the practice of the joint managers of copyright and related rights and/or to the Hungarian judicial practice - result in royalty payment obligation, the Client shall pay the underlying royalties of  copyright or related rights, and shall bear all related damages. The Client is responsible for compliance with the related legal provisions, payment of the related fees and bearing the damages. The Service Provider shall not be held responsible for losses suffered by the Client or any other person arising in connection with such royalty payment obligation.

The Client must warrant that only the Programs of the Service Provider are used in the above business premises/sites, and furthermore that no other contents defined by the copyright law as protected content are used.  The Client may not keep in its premises any device or equipment suitable for playing or displaying contents defined as content subject to copyright protection. The Service Provider disclaims responsibility related to other media equipment and devices. Keeping and operating such devices in the designated premises is the explicit responsibility of the Client, including especially the compliance with the provisions of Act CXXV of 1999.

In its designated premises the Client may only broadcast Programs provided by the Service Provider. The Client is obliged to document and continuously follow up all measures taken to comply with the above, and in case of any doubt or legal dispute, it is the task of the Client to prove that no other music, video or audio materials managed by collective rights management association holding collective rights were displayed in the Client’s premises/sites during the reference period.

Furthermore, the Client acknowledges that rules of the individual Contract concluded between the Parties are applicable solely to the site determined in the Contract.  For the case of non-compliance with the above rules, the Service Provider disclaims any liability arising in connection with any potential royalty payment obligation, and the Client represents that acknowledges and accepts such limitation of the Service Provider’s liability. 

In case if the Client breaches its obligations set forth in the Contract (and in the GTC), it should hold the Service Provider fully harmless against any and all damages, costs or payment obligations potentially arising in connection with the above breach of the contract.  

At the same time, the Client obliges itself not to record the Programs made available under the Contract to any audio or other data recording device, and will use them in accordance with and during the term of the Contract. 

Data Provisioning Obligation Data Protection

The Client agrees to inform the Service Provider on monthly basis - not later than on the 8th day following the month in question - about the number of the persons visiting a Service location (and indirectly using the Service) subject to the Contract during the month in question. By signing the Contract, the Client grants specific consent that the Service Provider may use the data submitted based on this section exclusively for statistical data collection, for a period of 8 (eights) years from the date the data was submitted. The data are controlled based on the above consent of the Client, as data subject.  By giving his/her consent, the Client represents the he/she familiarized with and understood the Service Provider’s data protection information. The provided data are not made public. The Service Provider is obliged to handle the gathered data and information fully confidential, in accordance with the applicable legal provisions, and to take all necessary technical and other measures necessary to protect the data.  

The Client authorizes the Service Provider to record the Contract details, including the Client’s personal data (name, address), as well as other data related to the use in electronic format and the control such data as part of its own business activities, pursuant to the applicable legal provisions.

The Data Controlling Policy applicable for the use of the services regulated in this GTC are accessible via the following link: https://fitradio.hu/adatkezelesi-tajekoztatas

Confidentiality

Both during the term and after the termination of the Contract, the parties shall handle as strictly confidential all documents and information related to the other party - including the Contract, as well as all of its provisions and annexes thereto - they become aware during their cooperation, as well as all business secrets, regardless whether such information was obtained from the other party or from third persons.  They will not disclose such documents and information for purposes not related to the fulfillment of this Contract, will not make them available to third parties, and will not transfer or use them.

Force Majeure

Responsibility of the Service Provider covers the contractual obligations assumed within its scope of interests. Accordingly, the Service Provider shall not be held responsible for any damage, cost or payment obligation of the Client or any third party attributable to force majeure or other events beyond the Service Provider’s control that may prevent continuous provision of the Service - especially including issues related to signal transfer over the internet, including but not limited to the following: changes to the structure of the Programs,  

potential disturbances in transmitting the broadcast signals to the Client, or of the signal transfer quality, provided that they are not attributable to the deficiencies of the Technical Equipment, as well as the delay of the Service Provider’s subcontractors, transportation or operational anomalies, lack of materials or energy, actions taken by government organizations. 

Complaint Management

It is the Service Provider’s objective to operate its services to the satisfaction of all of its Users.  If the User still has complaint about the Application or its operation, he/she may communicate it via the email or postal address specified in this GTC:

The Service Provider  will answer any complaint filed in writing within 30 days. The Service Provider is obliged to provide a written explanation for its decision rejecting the complaint. A copy of the response must be kept for 3 years, and upon request, the Service Provider shall present it to the auditing authorities.

Should the User be not satisfied with the way his/her complaints are handled or with any other action of the Service Provider, he/she may directly go to the National Authority for Consumer Protection or to the regionally competent Conciliation Body, using any of the following contact information:  

National Authority for Consumer Protection

Address: 1088 Budapest, József krt. 6.

Postal address: 1428 Budapest , PO 20.

Central telephone number: 06 (1) 459 4800

Fax: 06 (1) 210 4677

E-mail: nfh@nfh.hu

Budapest Conciliatory Body

Address: 1016 Budapest, Krisztina krt. 99. Rubric III/310.

Mailing address: 1253 Budapest, Pf.: 10.

Central telephone number: 06 (1) 488 2131

Fax: 06 (1 ) 2186

e-mail: bekelteto.testulet@bkik.hu

The User may file a complaint to any of the regionally competent Conciliation Bodies, the list and contact information of which are available on the following link:  

http://www.fogyasztovedelem.kormany.hu/node/8579

Competent court

The Contracting Parties are obliged to make attempts to settle their potential disputes in good faith, according to the requirements of fairness, keeping in mind their original intentions; should such attempt fail to bring the desired result, then with respect to their disputes arising from this legal relationship, the Parties submit to the exclusive competence of the Buda Central District Court.

Other provisions

Representative of the Client represents and warrants that he/she is fully authorized and entitled to conclude the Contract, in the name and on behalf of the Client, and shall be obliged to compensate for all losses, damages and costs and every other disadvantage suffered by the Service Provider, the Client or any other third party as a result of such representation not being true.    

Upon notifying the Client, the Service Provider is entitled to transfer the Contract to another company suitable and eligible for the fulfillment of the Contract. 

With respect to issues not regulated in the Contract and in the annexes thereto, as well as in this GTC, the applicable provisions of Act V of 2013 on the Civil Code shall prevail. 

The present GTC, as well as its potential annexes form inseparable part of the Contract.

In case of partial invalidity of these contractual conditions, the invalid sections shall be replace by the effective legal provisions, and parts of the contractual conditions not concerned by such invalidity shall remain effective in their original form.

The Service Provider is entitled to unilaterally amend this GTC; such modifications must be published on the Service Provider’s website at least 10 days before they enter into force.

By using the website and the Application, the Users agree that all regulations related to the use of the website and of the Application becomes automatically binding for them.

General terms of contract applicable to the use of the Fitradio mobile application operated by the Service Provider (hereinafter referred to as “Application”) are contained in the FitRadio Application GTC available on the following link: …………………………….

With respect to the services provided by the Service Provider, mainly the provisions set forth in the Contract and its annexes shall govern, whereas with respect to issues not regulated there, provisions of this GTC and potential annexes thereto, as well as provisions of the Civil Code shall be applied.

This GTC remains effective from March 31, 2019 until being revoked.

Date: Budapest, Wednesday, March 20, 2019

…………………………………

Máté Szabolcsi

Executive Director

FitRadio Kft.

Service Provider