T&Cs forCreators - Advanced
July 12, 2023
Acast Terms and Conditions for Creators - Advanced (exhibit 1 to the Podcast Term Sheet)
These terms and conditions apply as Exhibit 1 to the Podcast Term Sheet entered into separately between Acast AB (or any other Acast entity as set out in the Podcast Term Sheet) and the Podcaster. These terms and conditions is together with the Podcast Term Sheet referred to as the "Agreement".
In this Agreement and unless otherwise expressly stated, the following terms shall have the following meaning, to be equally applicable to the singular and plural forms of such terms where the context so permits:
1.1 “Acast+” (if applicable) means a technical solution provided to enable Users to access Podcaster content, including the Publication, from behind a subscription service/paywall, subject to the Terms of Service for Acast+ available at https://www.acast.com/terms-and-conditions-acast-plus.
1.2 “Acast IP” means the Intellectual Property Rights related to the Systems and all technology, software and code creating links and connections between Podcast Audio Files, Interactive Media, Commercials.
1.3 “Acast Recommends” means a commercial message promoting an Acast podcast show with an Acast tagline in the beginning of the message.
1.4 “Acast Supporter” (if applicable) means a technical solution provided to enable Podcaster to ask Users to contribute by making payments to Podcaster, subject to the terms of service for Acast Supporter available at https://supporter.acast.com/terms-and-conditions.
1.5 “Advertiser” means the Person paying for a Commercial in a Publication and/or Branded Content.
1.6 “Advertising Partner” means a third party engaged by Acast for (i) selling and/or producing Branded Content and/or Acast Commercials in a Publication; or (ii) providing advertising technology
(such as e.g. measurement and targeting), research, podcast data and/or other services for the purpose of increasing discoverability of Publication and/or sales of Acast Commercials in a Publication.
1.7 “Ad” means a commercial message in any format inserted into the Publication through the System or otherwise inserted as agreed between the Parties (excluding Sponsorships and Branded Content).
1.8 “Ad Marker” means a setting in CMS for placement of a break in an episode where a Commercial may be inserted.
1.9 “Applicable Privacy Laws” means the General Data Protection Regulation (Regulation (EU) 2016/679) (“GDPR”), the UK General Data Protection Regulation 2018/679 as implemented by the Data Protection Act 2018 ("UK GDPR"), and any similar or equivalent laws, regulations or rules applicable to the parties and relating to the processing of personal data as amended, replaced and/or supplemented from time to time, together with any enforceable guidance and codes of practice issued by any competent supervisory authority responsible for administering such data protection legislation.
1.10 “Block-List” means the IAB block-list (or other block-list) provided to Podcaster by Acast content team allowing Podcaster to block certain categories of Ads.
1.11 “Branded Content” means content linked to the Publication and/or the Podcaster that is sponsored by a brand which may include, but shall not be limited to, social media platforms, branded episodes, branded segments, live events, videos and cross-platform commercial partnerships.
1.12 “Branded Content Fee” means the remuneration payable to Podcaster by Acast for Branded Content agreed between the Parties as set out in Section 4.1.D.
1.13 “Commercial” means a commercial product (including but not limited to Ads and Sponsorship) in any format inserted into a Publication through the Systems or else inserted as agreed between the Parties.
1.14 “Community Guidelines” means the terms available at https://acast.com/en/community-guidelines, which may be updated from time to time and which are incorporated herein by reference and made a part hereof.
1.15 “Confidential Information” means any information supplied by either Party to the other Party in connection with this Agreement in any format (including written information and information transferred or obtained orally, visually, or electronically) whether or not marked as confidential, including without limitation (i) the negotiations leading to, existence and contents of this Agreement; (ii) customer lists; (iii) trade secrets; (iv) other information relating to the Parties’ businesses; and (v) any other information that would be regarded as confidential by a reasonable business person, but in each case excluding information that is or becomes known to the public pursuant to Section 12 hereof.
1.16 “CMS” means a technical solution provided to enable Podcaster to upload Podcast Audio Files, add Interactive Media and place Ad Markers.
1.17 “Effective Date” means the signature date of the Term Sheet.
1.18 “Fees” means the fees set out in the Term Sheet.
1.20 “Insights” means a technical solution provided to enable Podcaster to review and analyse anonymised statistics relating to a Publication.
1.21 “Insolvency Event” means if a Person: (i) is unable or admits it is unable to pay its debts as they become due or otherwise is unable to pay its debts in a proper manner and this inability is not temporary; (ii) suspends or threatens to suspend making payments on any of its debts; or (iii) appoints a liquidator, trustee in bankruptcy, receiver, administrator, or similar.
1.22 “Intellectual Property Rights” means: (i) copyrights, moral rights, performance rights, database rights and rights in designs; (ii) trade names, trademarks, service marks, goodwill, rights in get-up and trade dress, rights to sue for passing off, and rights to sue for unfair competition; (iii) patents and rights in inventions; (iv) rights in each of know-how, confidential information and trade secrets; (v) any other intellectual property rights, including all rights and interests in domain names and social media accounts; and (v) all rights that are similar or equivalent to each of (i) to (iv) now or in future, in each case of (i) to (v) anywhere in the world and, whether registered or unregistered (including applications, rights to apply and rights to claim priority).
1.23 “Interactive Media” means images, content descriptions and similar, links to external websites, videos, iFrame and/or other content added to a Publication by Podcaster through the use of CMS and connected to a specific time in the specific Publication or media content of the same or similar kind that may be added by Acast.
1.24 “Listen” means any IAB 2.1 certified (or any other measurement system decided by Acast from time to time) stream, download, play, access, or request for a Publication from any platform being captured by Insights.
1.25 “Net Advertising Revenue” means the amount actually received by Acast for Commercials, less applicable taxes and Advertising Partner fees. Payments from Advertisers relating to third-party costs for Commercial production, advertising technology (such as e.g. measurement and targeting), research, podcast data and/or other services that aim to increase revenues, are never included in the Net Advertising Revenue.
1.26 “Person” means an individual, corporation, partnership, joint venture, limited liability company, limited liability partnership, association, joint stock company, trust, unincorporated organisation, or other organisation, whether or not a legal entity, and any governmental authority.
1.27 “Podcast Audio File” means any podcast audio file that is uploaded or that should be uploaded to the Systems for distribution to Users pursuant to this Agreement.
1.28 “Publication” means (i) any and all audio (including, but not limited to all bonus material) associated with the podcast show hosted, distributed and/or monetised by Acast under the terms of this Agreement; (ii) any and all elements included and/or related to the RSS feed used to distribute the Podcast Audio Files; (iii) any and all related Interactive Media; and (iv) any and all audiovisual content created using any part of the audio described in (i).
1.29 “Player” means the media player provided by Acast to be used by Podcaster.
1.30 “Services” means the services set out in Section 2.1.
1.31 “Sponsor” means the Person paying for a Sponsorship in the Publication.
1.32 “Sponsorship” means a commercial message in any format, specifically trafficked for a Publication and voiced by the Talent or in the style of the Publication (excluding Ads and Branded Content).
1.33 “Standard Ad Inventory” means the number and frequency of Ads that are made available by Podcaster in each episode, which shall be one (1) pre-roll, two (2) mid-rolls and one (1) post-roll as minimum, unless otherwise set out in the Term Sheet.
1.34 “Standard Sponsorship Inventory” means the number and frequency of Sponsorship that are made available by Podcaster in each episode, which shall be one (1) pre-roll, one (1) mid-roll and one (1) post-roll as a minimum, unless otherwise set out in the Term Sheet.
1.35 “Systems” means Acast’s entire backend platform, including, but not limited to, any and all software related to Insights, CMS, Acast+, Acast Supporter and the software which enables a Publication to be made available from Acast’s controlled servers and accessible through third party media players.
1.36 “Talent” means the host(s) of, or voice associated with any Publication.
1.37 “Term” means the term as set out in the Term Sheet and in Section 10.1 herein.
1.38 “Unified Ad Slots” means a technical solution which combines the Standard Ad Inventory and Standard Sponsorship Inventory into one inventory equal to the total inventory of Standard Ad Inventory and Standard Sponsorship Inventory together.
1.39 “User” means an individual Person accessing a Publication via any application, website and/or media player owned or controlled by Acast and/or a third party.
2. ACAST SERVICES AND UNDERTAKINGS
2.1 During the Term of this Agreement and subject to the terms and conditions herein, Acast shall:
A. host the Publication;
B. make available a version of CMS to Podcaster:
C. make available a version of Insights to Podcaster;
D. make available to Podcaster a version of Acast+ (if applicable) and/or Acast Supporter (if applicable);
E. use reasonable efforts to sell and serve Commercials in a Publication as further specified in Section 4, subject to the provisions of this Agreement;
F. distribute the Publication to Users and make the Publication available to other third-party platforms; and,
G. provide reasonable support and assistance to Podcaster with regards to the utilisation of the Systems.
2.2 In providing the Services, Acast shall aim to: (i) perform its obligations under this Agreement with the reasonable skill, care and diligence to be expected of a professional provider of development and hosting services, (ii) apply such time, attention, resources, trained personnel and skill as may be reasonably necessary for the due and proper delivery of the Services. Acast shall act only in accordance with this Agreement and perform the Services and its obligations under this Agreement in accordance with all applicable laws, including all applicable data protection and privacy laws.
2.3 Acast shall comply with reasonable security measures and will impose internal controls over those of its employees, contractors and consultants with remote access to the back-end administration systems relating to the Systems. Acast shall implement reasonable security procedures to prevent unauthorised access to the Systems, the Publication and all materials hosted by Acast throughout the Term of the Agreement. If Acast is aware of or otherwise receives a bona fide notice of that its security procedures have been circumvented or failed, resulting in actual harm to Podcaster (a “Security Breach”) Acast will provide notice to Podcaster within seventy-two (72) hours of discovering such Security Breach. All documents that are written or exchanged in connection with any Security Breach shall be treated as Confidential Information.
2.4 Notwithstanding anything to the contrary in this Agreement, Acast shall have the right to temporarily or permanently modify or discontinue to provide any part of the Systems including any and all provided technical solutions, at any time upon three (3) months written notice to Podcaster.
3. PODCASTER SERVICES AND UNDERTAKINGS
3.1 During the Term of this Agreement and subject to the terms and conditions set out herein, Podcaster:
A. is responsible for the content of any Publication uploaded by or on behalf of Podcaster into the Systems;
B. hereby grants Acast the right to exclusively host, distribute and monetise the Publication, by any and all means and methods of distribution and monetisation;
C. shall use Acast as the exclusive partner for hosting, distribution and monetisation of Podcaster’s podcast portfolio as defined in Section 2 of the Term Sheet;
D. shall exclusively use the Systems and the RSS feeds generated by Acast for a Publication and not use or permit use of any other software, media, platform and/or services for hosting, streaming, distributing or accessing of a Publication, unless otherwise explicitly agreed in writing between the Parties;
E. shall use the Player on its website and any of their respective subdomains;
F. shall use all reasonable skill and care in creating, uploading or providing (in a timely manner time) any Podcast Audio Files and shall not knowingly or intentionally introduce into the Systems any program, routine or device which is designed to disable or otherwise interfere with or harm the Systems or any Publication or any part of any of the same, including without limitation any virus, timebomb, software lock, drop-dead device, malicious logic, worm, Trojan horse or trap door;
G. shall make the Standard Ad Inventory and Standard Sponsorship Inventory available in each episode and ensure that any Ad Markers are correctly placed and allow Acast to use Unified Ad Slots to fill the Standard Ad Inventory and Standard Sponsorship Inventory with both Sponsorships and Ads as available;
H. shall make Talent available for Sponsorships on terms to be agreed upon between the Parties and for agreed Sponsorships, ensure that Talent participates in a meaningful and timely way in the recording thereof and delivers all parts of the Sponsorship as agreed;
I. agrees (i) that Acast has the right to make the Publication (with or without Commercials) available on Acast+ for the purpose of subscription and/or transactional based distribution behind a paywall; (ii) to take such actions as may be reasonably required by Acast in order to facilitate such distribution; and (iii) the Terms of Service for Acast+. However, notwithstanding the Terms of Service for Acast+, it is specifically agreed that Acast has the right to decide the subscription fee and other necessary terms for such subscription-based distribution, if not set by Podcaster;
J. shall provide Acast with and hereby grants Acast a non-exclusive, royalty-free, worldwide, revocable licence to use Podcaster’s trademark(s) (if applicable) and audio clips from the Podcast Audio Files solely to assist Acast in providing the Services, as well as for the purpose of promoting Podcaster, the Publication and/or Acast and its products and/or services (including, without limitation in marketing and advertising material, sales pitches and on Acast’s websites);
K. shall include the Acast logo, as provided by Acast, on the Publication cover art if expressly requested by Acast and grant Acast the right to include the Acast logo on the Publication cover art (if not included by Podcaster);
L. shall provide Acast with, and hereby grants Acast the right to use any and all cover art and podcast imagery provided by Podcaster for promotional purposes of the Publication and Acast products and services, including but not limited to any PR, marketing campaigns and sales pitches and on Acast’s websites; and
M. shall for the duration of the Agreement, not approach or enter into any agreement with any Advertiser, Advertising Partner or any third party for the purpose of selling Commercials or Branded Content in connection with the Publication.
3.2 Podcaster shall ensure that: (i) it has obtained and shall maintain throughout the Term all necessary authorisations, approvals and consents required to enter into and perform its obligations hereunder (including, without limitation, all necessary music, synchronisation, mechanical and performing rights licences from any and all rights holders including collecting societies); and (ii) the exploitation of the Podcast Audio Files and any content provided by Podcaster as permitted hereunder does not and will not violate the Agreement, the Community Guidelines or any applicable laws, rules or regulations.
3.3 Podcaster agrees that during the Term it shall not:
A. archive, re-produce, modify, copy, distribute, create derivative works from, translate, resell, perform or display to the public, publish, licence (except as expressly permitted in this Agreement), offer for use, or permit access to the Systems by any third-party;
B. take any actions, directly or indirectly, or enable or authorise a third party to take any such actions, to artificially or in bad faith alter the streaming and/or download numbers of a Publication as measured by the Systems;
C. act in any way that may affect Acast’s ability to accurately count Listens, impressions or the placement of advertisements based on Acast’s assumed standards;
D. interfere with or disrupt the access to the Systems;
E. unless otherwise provided for under applicable law: (i) decompile, reverse engineer or disassemble any software provided to Podcaster or that is accessible through the Systems; (ii) attempt to gain unauthorised access to the Systems, or attempt to discover the underlying source code or structure of the Systems including by circumventing, removing, or deactivating any protections; and/or (iii) use any robot, spider, scraper or other automated means to access the Systems, or enable or authorise a third party to do any of the foregoing;
F. submit any content or data that contains mass mailings or any form of spam;
G. without limiting the generality of the foregoing, access the Systems for purposes of monitoring its performance, functionality or availability, or for any other competitive purposes; or
H. use the Systems other than in compliance with the Agreement and any amendment hereto, applicable laws and regulations and the Community Guidelines.
3.4 Furthermore, it is agreed that Podcaster:
A. shall create an account with Acast to log in and access the Systems, or if agreed Acast may create the account on behalf of Podcaster. When creating the account Podcaster accepts the Terms and Conditions for Creators as made available at https://www.acast.com/terms-and-conditions-for-creators-standard (“Platform Terms”) however it is specifically agreed that this Agreement shall replace the Platform Terms in its entirety;
B. is fully responsible for the account and all activities that are carried out under the account and for keeping the account and login details secure. Podcaster shall not transfer the account and may only share the account with a Person that Podcaster has entered into an agreement with, subject to Podcaster shall always remain fully responsible for the account. Acast will not be responsible for any losses suffered by Podcaster in circumstances where Podcaster’s account is used by someone else, except where this is demonstrably caused by Acast’s negligence; and
C. warrants that all user information provided by or on behalf of Podcaster to Acast is true and correct and that, when necessary, Podcaster will update the user information so that it remains true and correct at all times.
4.1 The Parties acknowledge and agree that:
A. Commercials sold and served in a Publication will comply with the terms and conditions of this Agreement;
B. Acast’s failure to secure a specific number of Commercials in a Publication or impressions shall not constitute a breach of this Agreement;
C. Podcaster has the right to refuse a Sponsorship but Podcaster’s approval shall not be unreasonably withheld, conditioned or delayed;
D. if the possibility of creating Branded Content arises Acast will provide Podcaster with a proposal for the Branded Content, including the Branded Content Fee which will be agreed and contracted (if required) in good faith and in advance between the Parties on a case-by-case basis;
E. Podcaster shall, through the use of the Block-List be entitled to block specific categories of Ads which may not be booked and/or trafficked in a Publication. Any Commercial already sold and/or trafficked are not subject to Block-List updates made after the Commercial was already booked and/or sold; and
F. Podcaster has a right to refer brands for Sponsorships to Acast, however Acast shall have no obligation to approve a brand referred by Podcaster. The Referral Split as per the Term Sheet is only applicable to a specific Sponsorship with the brand referred by Podcaster, unless Acast has a relationship with the referred brand (including without limitation ongoing discussions or previous sales relationship), in which case the Revenue Split for Sponsorships shall apply. The Referral Split shall not apply to any Sponsorships with the referred brand sold by Acast thereafter.
4.2 Acast shall have the right to sell Commercials to and contract with its respective Advertisers or Sponsors in accordance with standard rates determined in Acast’s or its Advertising Partner’s business judgement.
4.3 Acast agrees that the Commercials inserted into a Publication shall: (i) comply with any and all applicable laws and regulations, (ii) not contain explicit, or graphic descriptions or accounts of sexual acts or is threatening, abusive, harassing, defamatory, libellous, misleading, deceptive, fraudulent, invasive of another’s privacy rights, (iii) not infringe upon or violate any third-party rights, including Intellectual Property Rights, (iv) not promote any other individual or entity that directly competes with Acast, and (vi) comply with the terms of this Agreement. Notwithstanding the above, Podcaster shall always have an obligation to comply with any instructions given by Acast or a third party in relation to any Sponsorship reads and shall be fully liable for any non-compliance with such instructions. In addition, Podcaster undertakes to include all relevant information in all Sponsorships and any other parts of the Publication where there is a commercial message other than an Ads, to ensure that the distinction between advertising and editorial content is clear to the User.
4.4 Acast will use reasonable efforts to ensure that Commercials sold by Advertising Partners and other third parties on behalf of Acast, comply with the terms of this Agreement and any other restrictions applicable to the Commercials agreed to by the Parties in writing. For the sake of clarity, Acast has the right, in its sole discretion and at all times, to remove a Commercial from a Publication if Acast is uncertain of its compliance with this Agreement or any applicable laws and regulations.
4.5 Acast shall have the right to replace a sponsorship slot with an ad slot and vice versa in the Standard Sponsorship Inventory and Standard Ad Inventory, in its sole discretion. The Parties further agree that any unsold inventory in a Publication may be used by Acast for free, solely for advertising and promoting Acast, Acast’s products and/or services and/or any other content hosted by Acast, such as Acast Recommends or similar. In addition, Acast shall be entitled to use any unsold Commercial inventory in a Publication for the purpose of doing barters with third parties, provided that Podcaster is compensated with a corresponding value of promotion for the Publication on the Acast network (such as Acast Recommends or similar).
5. REVENUE SHARE, FEES AND PAYMENTS
5.1 Subject to Section 5.2 hereof, Podcaster and Acast agree to share Net Advertising Revenue in accordance with the splits set forth in the Term Sheet.
5.2 For the provision of the Services, Podcaster shall pay the Fees as stated in the Term Sheet. Without prejudice to Podcaster’s warranties in Section 7.1 and indemnification in Section 8.1, in the event that the Publication includes music which has not been cleared by Podcaster in accordance with this Agreement, Acast shall, have the right to clear and pay for such music and invoice Podcaster as set out in this Section 5 (“Music Costs”).
5.3 Acast makes no representation or warranty that any Commercial and/or exploitation of rights granted hereunder will generate any amount of Net Advertising Revenue or Branded Content Fee.
5.4 Acast uses a self-billing procedure and provided that such procedure is accepted under applicable law, Podcaster shall not object to such self-billing procedure in accordance with Acast’s further reasonable instructions. The self-billing procedure means that Acast will provide Podcaster a self-bill after the end of each month which shall include a statement on Podcasters share of Net Advertising Revenues and any Branded Content Fee for the applicable month (except that Net Advertising Revenues for programmatic sales for technical reasons will be reported later), the Fees for the previous month and, if applicable, verifiable out of pocket Music Costs incurred by Acast for a Publication (“Self-Bill”). Acast shall pay Podcaster in accordance with the Self-Bill no later than sixty (60) days from the date of the Self-Bill.
5.5 If the self-billing procedure as set forth in Section 5.4 does not apply for Podcaster, Acast shall provide Podcaster with a statement on Podcasters share of Net Advertising Revenues and any Branded Content Fee for the applicable month (except that Net Advertising Revenues for programmatic sales for technical reasons will be reported later), the Fees for the previous month and, if applicable, verifiable out of pocket Music Costs incurred by Acast for a Publication (“Statement”) after the end of each calendar month and Podcaster shall send a valid invoice to Acast at firstname.lastname@example.org or otherwise as instructed by Acast from time to time. Acast shall pay such invoice no later than sixty (60) days after receipt of such invoice.
5.6 At the end of each month, Acast shall invoice Podcaster in respect of the Fees and the Music Costs (if applicable) for the previous months and subject to Podcaster’s receipt of such invoice Podcaster shall pay the invoice no later than sixty (60) days. For the avoidance of any doubt, Acast shall have the right to off-set an invoice due against an invoice provided by Podcaster or against a self-bill as applicable.
5.7 Any late payment of an invoice will incur interest at the rate of three (3) percentage points over the then current advertised prime rate at the Swedish Riksbank.
5.8 Any objection to a Statement, Self-Bill and/or invoice sent by Acast must be notified to Acast within two (2) months after receipt of such Statement, Self-Bill and/or invoice (as applicable). Podcaster agrees that any such objection in order for it to be valid needs to be specified in reasonable detail as to which parts of the Statement, Self-Bill and/or invoice that Podcaster deems incorrect. A general objection shall not be deemed adequate and sufficient for this purpose.
5.9 Podcaster shall ensure that Podcaster’s contact and payment information provided to Acast is always accurate and complete. To the extent permitted under applicable law, if Acast has not received from Podcaster a valid invoice or any other necessary payout information (as applicable) within six (6) months from expiration or termination of this Agreement, Podcaster hereby agrees that any such outstanding amount due to Podcaster pursuant to this Agreement shall be the property of Acast.
5.10 Podcaster is fully responsible for reporting and paying all taxes and related fees related to any payment due to or received by Podcaster under this Agreement and Podcaster shall fully indemnify Acast for any claims related thereto.
5.11 Podcaster shall have the right to engage an independent and recognised auditing firm, at its own cost and expense, to examine and audit all relevant information and documents insofar as they pertain to the Net Advertising Revenue and Branded Content Fee (if applicable) due to Podcaster, wherever located (including electronic data), in order to verify the correctness of the amounts payable to Podcaster hereunder once per calendar year at any time during the Term hereof and for one (1) year thereafter with no less than thirty (30) days’ written notice. Any audit must be conducted during normal CET business hours and in a manner designed to not unreasonably interfere with Acast’s ordinary business operations, and each such audit may only cover the period commencing after the period covered by the last audit conducted on behalf of Podcaster. The auditors engaged to conduct such an audit shall execute and deliver to Acast a confidentiality agreement that is satisfactory to Acast. No audit may continue for longer than fifteen (15) consecutive business days. If an audit reveals that the amounts paid to Podcaster are incorrect, the relevant Party shall undertake to remedy such error as soon as practically possible.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 Podcaster is and remains the sole owner of all right, title and interest in the Intellectual Property Rights in and to the Podcast Audio Files, the parts of a Publication that have been added by or on behalf of Podcaster and Podcaster’s name, trade marks, logos, branding and all components thereof (excluding the Acast IP). To the extent that Acast may be deemed to have acquired any such rights in or to a Publication, Acast hereby assigns (by way of present and, where appropriate, future assignment) all such Intellectual Property Rights to Podcaster. Podcaster reserves any rights not expressly granted herein.
6.2 Acast is and remains the sole owner of the parts of a Publication that have been added by or on behalf of Acast, the Systems, including but not limited to all right, title and interest to the Acast IP. Acast hereby grants to Podcaster a non-exclusive, royalty-free, non-transferable, non-sublicensable, revocable, worldwide licence for the Term to use the Systems and the Acast IP in accordance with the terms of this Agreement. Acast reserves any and all rights not expressly granted to Podcaster. Except as expressly specified in this Section, this Agreement does not confer upon Podcaster any right to or in respect of the Systems or to any technology or software being part of such system. Acast reserves any rights not expressly granted herein.
6.3 Podcaster hereby grants to Acast an exclusive, royalty-free, non-transferable (except in respect of companies controlled by Acast), non-sublicensable (except in respect of companies controlled by Acast or as otherwise set out below), irrevocable, worldwide licence for the Term of this Agreement to:
A. distribute, reproduce and otherwise exploit the Publication using the Systems and/or third-party media platforms for the purposes of exercising its rights and performing its obligations under this Agreement; and
B. transcribe (including by using third party transcription service providers) the audio in the Podcast Audio File to text and to distribute, reproduce and exploit such transcription to the same extent as a Publication inter alia for the purpose of increasing Commercial sales and discoverability of a Publication as well as fulfilling any market and/or legal requirements related to making a Publication available in another format than audio.
7.1 Podcaster hereby warrants that:
A. it is duly organised, validly existing and in good standing in the jurisdiction of its organisation, and that it has full corporate power and authority to enter into and perform its obligations under this Agreement;
B. it owns all rights in and to, or has the benefit of a valid and subsisting licence to use and exploit throughout the world all content contained related to a Publication;
C. this Agreement is a valid and binding obligation of Podcaster;
D. the execution of this Agreement and performance of its obligations under this Agreement do not and shall not violate any other agreement to which it is a party;
7.2 Acast hereby warrants that:
A. it is duly organised, validly existing and in good standing in the jurisdiction of its organisation, and that it has full corporate power and authority to enter into and perform its obligations under this Agreement;
B. this Agreement is a valid and binding obligation on Acast; and
C. the execution of this Agreement and performance of its obligations under this Agreement do not and shall not violate any other agreement to which it is a party.
7.3 The Parties’ warranties shall survive the expiration or earlier termination of this Agreement.
7.4 Each Party shall promptly notify the other Party in writing if that Party detects that a third party has or is in the process of infringing Intellectual Property Rights held by the other Party.
7.5 Except for the express warranties set forth in this Agreement, all information, products and services provided by one Party to the other Party under this Agreement, including the Systems and the Player are provided "as is" and "as available" without representation or warranty of any kind, whether express, implied, statutory or otherwise, including any implied warranties of satisfactory quality and fitness for a particular purpose.
8.1 Podcaster shall indemnify and hold Acast harmless from, and will defend Acast against, any and all losses, demands, claims, damages, reasonable costs and/or expenses incurred by Acast arising out of or in connection with any third-party claims, actions or proceedings brought against Acast under the laws of any jurisdiction:
A. to the extent it is based on a claim that the Publication and/or any content created by or on behalf of Podcaster related to the Publication (including Sponsorships provided such breach or infringement occur due to Podcaster’s non-compliance with Acast or a third party’s instruction in relation to the Sponsorship) or any part thereof is injurious or harmful to the reputation of a third party (including claims of libel, defamation or slander) or in breach of any applicable laws, regulations or codes;
B. arising out of or in connection with a breach by Podcaster of any applicable laws, regulations or codes, including any applicable data protection and privacy laws;
C. to the extent it is based on a claim that a Publication, or any part thereof, is an infringement of any rights, including, without limitation any Intellectual Property Rights, of any third party; or
D. arising out of a breach of Podcaster's warranties in Section 7.1.
8.2 Acast shall indemnify and hold Podcaster harmless from, and will defend Podcaster against, any and all losses, demands, claims, damages, reasonable costs and/or expenses incurred by Podcaster arising out of or in connection with any third-party claims, actions or proceedings brought against Podcaster under the laws of any jurisdiction:
A. to the extent it is based on a claim that a Commercial sold by Acast (i.e. Commercials included in an agreement between Acast and an Advertiser/Sponsor including referrals from Podcaster where Acast has an agreement with the Advertiser/Sponsor) included in a Publication is in breach of any applicable law, or is an infringement of any rights, including, without limitation any Intellectual Property Rights of any third party, provided such breach or infringement does not occur due to Podcaster’s non-compliance with Acast or a third party’s instruction in relation to a Sponsorship;
B. arising out of or in connection with a breach by Acast of any applicable laws, regulations and or codes, including any applicable data protection and privacy laws;
C. to the extent it is based on a claim that the Systems, the Player or the Services infringe the rights, including, without limitation, any Intellectual Property Rights, of any third party; or
D. arising out of a breach of Acast's warranties in Section 7.2.
8.3 Each Party (the “Indemnified Party”) agrees to (i) promptly notify the other Party (the “Indemnifying Party”) of the existence of a claim in writing (provided that a failure or delay in providing such notice will not relieve the Indemnifying Party’s obligations except to the extent prejudiced by such failure or delay), (ii) permit the Indemnifying Party to defend, compromise or settle such claim in its discretion and to have the exclusive conduct of such proceedings using counsel of its own choice at its own expense provided that the Indemnifying Party will not agree to any settlement that imposes any obligation or liability on the Indemnified Party without its or their prior express written consent not to be unreasonably withheld, conditioned or delayed, and (iii) provide all available information, assistance and authority to enable the Indemnifying Party to take such action as it considers necessary under sub-section (ii) above and to bear the responsibility and liability set out herein. The Indemnified Party may not compromise or settle any claims without consent from the Indemnifying Party not to be unreasonably delayed, withheld or conditioned. For the avoidance of any doubt, the Indemnifying Party shall not, without the written consent of the Indemnified Party, as part of any settlement or compromise admit to liability on the part of the Indemnified Party or settle any manner that separately apportions fault to the Indemnified Party.
8.4 Acast is entitled, at its sole discretion and at all times, to immediately remove Commercials, Podcast Audio Files, Interactive Media and/or Publication, or any parts thereof, from the Systems in the event any third-party claims, actions or proceedings are brought or threatened or should Acast independently find out, or be notified that such third-party claims, actions or proceedings are likely. Further, Podcaster is entitled, at its sole discretion, to remove Podcast Audio Files, Interactive Media and/or Publication (or parts thereof) from the Systems by use of CMS and/or request Acast in writing (by sending an email to email@example.com) to remove Commercials, Podcast Audio Files, Interactive Media and/or Publication from the Systems in the event that any third-party claims, actions or proceedings are brought or threatened. Upon receipt of a valid request from Podcaster, Acast shall remove such Commercials, Podcast Audio Files, Interactive Media and/or Publication within forty-eight (48) hours. For the avoidance of doubt, Acast can only remove Commercials, Podcast Audio Files, Interactive Media and/or Publication from the Systems and may not be able to remove content from any third-party devices or servers, through which it has been accessed.
8.5 The Parties indemnification obligations shall survive the expiration or earlier termination of this Agreement.
9. LIMITATION OF LIABILITY
9.1 Notwithstanding anything to the contrary herein,
A. neither Party shall be in breach of, or under any liability to make any payment to the other Party under this Agreement to the extent that the breach or payment obligation arises as the result of any breach by the other Party of its obligations under this Agreement; and
B. Acast shall have no liability in respect of any losses, demands, claims, damages, costs and/or expenses incurred by Podcaster (including any third party claims in respect of the same) arising out of or in connection with any bugs, errors, or defects in the Systems or any interruption or downtime of any part of the Systems, regardless of whether such damage is an actual damage or whether it is foreseeable or not.
9.2 The Parties agree that in any action regarding or relating to this Agreement, the damages that may be awarded shall be limited to any direct damages suffered by the other Party.
9.3 Neither Party shall be liable to the other for: (i) any loss of profit, revenue, contracts, business, goodwill or reputation, in each case whether direct or indirect; or (ii) any loss that is not reasonably foreseeable or any loss that is indirect or consequential arising from or relating to any breach of this agreement, regardless of any notice of the possibility of such damages, in each case, whether in contract, tort, or otherwise in connection with this Agreement.
9.4 To the extent permitted by applicable law, the maximum aggregate liability of each party arising out of or in connection with the agreement shall be fifty thousand euros (EUR 50,000).
9.5 Nothing in this Agreement shall limit or restrict liability for:
A. death or personal injury caused by the relevant party’s negligence;
B. liability for fraud or fraudulent misrepresentation;
C. deliberate repudiatory breach or wilful misconduct;
D. any liability that cannot be excluded by applicable law; or
E. the indemnification under Section 8.1 and 8.2.
10. TERM AND TERMINATION
10.1 This Agreement enters into force as of the Effective Date and shall continue for the Initial Term set out in the Term Sheet unless prematurely terminated in accordance with provisions set out in Section 10.2 and 10.4 below. The Parties can terminate the Agreement at the end of the Initial Term by providing to the other Party not less than six (6) months written notice. If such notice is not received, the Agreement shall automatically renew for additional twelve (12) month period(s) unless notice is given to the other Party not less than six (6) months prior to the expiry of the then current Term. For the avoidance of doubt, in the event a Commercial has been booked prior to Podcaster’s notice of termination, Acast shall have the right to exclusively host, distribute and monetise the Publication until such campaign ends. The Initial Term and any subsequent renewed term are collectively referred to as the Term.
10.2 In case of a Party’s material breach of this Agreement, the other Party is entitled to immediately suspend or terminate the Agreement, unless the breaching Party rectifies such breach (if capable of rectification) within fourteen (14) days from the day the non-breaching Party provided notice of breach.
10.3 Acast may suspend (except for any payments already due under the terms contained herein) this Agreement in its discretion in the case that any program, routine, or device including but not limited to those described in Section 3.1.F herein affects the Systems, regardless of the intent or knowledge of Podcaster, or if Podcaster acts in a way that in Acast’s reasonable opinion may have a negative effect, that is not insignificant, on Acast’s possibility to monetise the Publication. In addition, if Acast determines that Podcaster has breached Sections 3.3.B or 3.3.C, or that Listens on the Publication otherwise reasonably have been subject to any actions that artificially or in bad faith have altered the streaming or download numbers, regardless of the intent of the Podcaster, Acast may suspend and withhold accrued payments and/or reduce future amounts due to Podcaster under Section 5.4. The amount of such suspended or withheld accrued payment and/or reduced future amount shall correspond to an amount that is reasonably necessary for Acast to cover its cost and/or be compensated for the damage incurred due to the breach or action set out in the previous sentence.
10.4 Both Parties shall be entitled to terminate this Agreement immediately by notice in writing upon the occurrence of an Insolvency Event.
11. EFFECT OF TERMINATION
11.1 Upon termination of this Agreement, under any circumstances, each Party maintains the Intellectual Property Rights which such Party held at the commencement of this Agreement, and otherwise in accordance with the provisions herein.
11.2 Upon termination of this Agreement Acast will make available all files and copies related to a Publication for Podcaster to download no later than thirty (30) days from termination. Podcaster shall provide Acast with “re-direct tags” no later than fifteen (15) days from termination in order for the files to be re-directed to the destination required by Podcaster. Acast will provide Podcaster with assistance (to the extent reasonable in Acast’s sole opinion) to facilitate the re-direct including, where necessary, by continuing to provide its services for maximum thirty (30) days following termination. After thirty (30) days from termination, or upon migration or extraction is completed and confirmed in writing by Podcaster, whichever is earliest, Acast shall destroy and dispose of all such files in its possession or control. However, Podcaster acknowledges that a Publication already downloaded by the Users could still remain on the Users devices even after the termination of this Agreement.
11.3 Upon termination of this Agreement: (i) Acast shall cease to monetise a Publication, cease insertion of any Commercials into a Publication, and all licences set forth herein shall automatically terminate. Acast shall remove all Publications from the Systems and any third-party media platform (if technically possible), however, for the avoidance of doubt, provided that the Podcast Audio File is openly accessible from the internet and listenable from third-party podcast clients Acast may continue to refer to such Podcast Audio Files through its platform precisely as any other podcast client, (ii) all outstanding payment obligations not disputed in good faith will become immediately due and payable, and no new payment obligations will accrue; (iii) each Party shall return to the disclosing Party all copies of all Confidential Information and all copies of all documents containing Confidential Information, or shall destroy or erase all copies of all such Confidential Information and documents in a manner that is verifiable by the disclosing Party.
12.1 Each Party undertakes, during the Term of this Agreement and thereafter to keep Confidential Information of the other Party confidential and not use such Confidential Information otherwise than for the purpose of this Agreement.
12.2 Each Party shall take all necessary precautions to prevent any unauthorised disclosure or use of such Confidential Information by its officers, directors, employees or other representatives.
12.3 The obligations of confidentiality contained in this Section 12 will not apply to the extent that it can be established by the receiving Party by competent proof that such Confidential Information:
A. was already known to the receiving Party at the time of disclosure by the other Party as demonstrated by contemporaneous documentation,
B. was generally available to the public or otherwise part of the public domain at the time of its disclosure to the other Party,
C. became generally available to the public or otherwise part of the public domain after its disclosure and other than through any act or omission of the receiving Party in breach of this Agreement, or
D. was disclosed to the receiving Party, other than under an obligation of confidentiality, by a third party who had no obligation to the other Party not to disclose such information to others.
12.4 Each Party may disclose Confidential Information to the extent such disclosure is necessary to comply with applicable governmental regulations, laws or stock exchange rules, provided that the Party required to make any such disclosure will, to the extent practicably possible, give reasonable advance notice to the other Party of such disclosure requirement and will use its best efforts to secure confidential treatment of such information required to be disclosed.
12.5 Each Party is entitled to discuss Confidential Information with its accountants or other advisors provided that they are subject to professional obligations of confidentiality similar to those contained herein.
12.6 A breach of the undertaking of confidentiality set out in this Section 12 is always considered a material breach of this Agreement and is not capable of rectification. The non-breaching Party has the right to terminate this Agreement immediately without notice should such a breach occur.
13.1 Any notice or other information required under this Agreement to be given by either Party to the other shall be given or made in writing and sent via email or by first class prepaid recorded post, courier to the other Party using such addresses as are set out in the Term Sheet.
13.2 Any notice or other information shall be deemed to have been received by the receiving Party when received if delivered by courier, at the time it is left at the relevant address and if sent by first class prepaid recorded post, on the second business day after posting and if sent by email only, when received in legible format.
14. DATA PRIVACY
14.1 Acast will process personal data on behalf of Podcaster if such personal data is included in a Publication. This personal data is generally limited to the voice, name and/or images of the Talent, guest(s) and any other individual’s personal data which is included in a Publication. Where that is the case and for the purposes of Applicable Privacy Laws, Acast is the processor and Podcaster is the controller of such personal data. Podcaster guarantees that it complies with its obligations as a data controller. Acast guarantees that it has implemented appropriate technical and organisational measures to protect Podcaster’s personal data, including, as appropriate, the measures referred to in Article 32(1) of the GDPR/UK GDPR, as applicable. Further, Podcaster grants Acast general authorisation to engage another processor who will process the personal data in accordance with Acast’s instructions.
14.3 Acast may send newsletters, offers, information, updates, tips and other direct marketing messages related to Acast, its products and/or services. Podcaster hereby consents to Acast’s use of Podcaster and/or its employees and/or representatives' contact details (i.e. name and email address) for the aforementioned purposes. Podcaster may withdraw its consent at any time.
15. ENTIRE AGREEMENT, AMENDMENTS
This Agreement sets forth the entire agreement and understanding of the Parties with respect to the subject matter hereof and supersedes all prior discussions and agreements with respect to the same. In entering into this Agreement:
A. the Parties have not relied on any statement, representation, warranty, understanding, undertaking, promise or assurance of any kind made by any person other than as expressly set out in this Agreement;
B. any terms implied by applicable law in any jurisdiction in relation to this Agreement are excluded to the fullest extent permitted, or if incapable of exclusion, all claims, rights and remedies are waived by the Parties;
C. subject to Section 16.6, the only right or remedy of a Party in relation to any provision of this Agreement shall be for breach of this Agreement;
D. subject to Section 16.6, except for any liability in respect of a breach of this Agreement, neither Party shall owe any duty of care or have any liability in tort or otherwise to the other Party in relation to this Agreement; and
E. Each Party irrevocably and unconditionally waives all claims, rights and remedies which it might otherwise have had but for this section in relation to any of the foregoing.
15.2 Nothing in Section 15.1 shall limit any liability for fraud or fraudulent misrepresentation.
15.3 Any amendment of this Agreement must be in writing and signed by duly authorised representatives of the Parties.
16.1 The Parties shall at all times execute their undertakings under this Agreement in accordance with applicable laws and regulations.
16.2 Neither Party may assign or sub-license or deal in any manner with any of its rights under this Agreement or subcontract any of its obligations under this Agreement or purport to do any of the same, without the prior written consent of the other Party (except as specified in Section 6.3 and with the exception that Acast shall have the right to transfer rights and obligations under this Agreement to companies controlled by Acast).
16.3 Any waiver of any right or remedy requires the written consent of the Party waiving it. In no event will any delay, failure or omission (in whole or in part) in enforcing, exercising or pursuing any right, power, privilege, claim or remedy conferred by or arising under this Agreement or by law, be deemed to be or construed as a waiver of that or any other right, power, privilege, claim or remedy, or operate so as to bar the enforcement of that, or any other right, power, privilege, claim or remedy, in any instance at any time or times subsequently.
16.4 If any provision of this Agreement is held to be unenforceable for any reason, it shall be adjusted rather than voided, if possible, to achieve the intent of the Parties. In any event, all other provisions of this Agreement shall be deemed valid and enforceable. This Agreement and the schedules hereto sets forth the entire agreement and understanding of the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements.
16.5 Each Party is an independent contractor and each Party’s personnel are not employees or agents of the other Party for tax purposes or any other purposes whatsoever. Personnel of one Party have no authority to make representations, commitments, bind or enter into contracts on behalf of or otherwise obligate the other Party in any manner whatsoever. Nothing in this Agreement shall be construed or deemed to constitute, create, give effect to or otherwise recognize a joint venture, partnership, business entity, or employment relationship of any kind, nor constitute one Party an agent of the other Party. There are no third-party beneficiaries, actual or intended, under this Agreement.
16.6 If Acast breaches any of its obligations hereunder, in no event shall Podcaster be entitled to in any way enjoin or restrain the development, production, advertising, promotion, distribution, exhibition or other exploitation of the Systems. The rights granted hereunder are of a special, unique, unusual, extraordinary character, and if Podcaster fails or refuses to perform its obligations hereunder, Acast shall be entitled to injunctive or other equitable relief.
17. GOVERNING LAW, DISPUTE RESOLUTION
17.1. The validity, construction and performance of this Agreement (and any claim, dispute or matter arising under or in connection with it or its enforceability) and any non-contractual obligations arising out of or in connection with it, shall be governed by and construed in accordance with the law of Sweden. Each Party irrevocably submits to the exclusive jurisdiction of the courts of Sweden over any claim, dispute or matter arising under or in connection with this Agreement or its enforceability or the legal relationships established by this Agreement (including non-contractual disputes or claims), and waives any objection to proceedings in such courts on the grounds of venue or on the grounds that proceedings have been brought in an inconvenient forum.