These Master Terms and Conditions are entered into between you ("Customer" or "You") and Spotify ("Spotify", "we", "us", or "our"). Spotify means: (a) if You are an entity organized under or otherwise subject to the laws of the United States of America: Spotify USA Inc., a Delaware Corporation with offices at 4 World Trade Center, 150 Greenwich Street, 62nd Floor, New York, New York 10007; or (b) if You are an entity organized under or otherwise subject to the laws of any country outside of the United States of America: Spotify AB, of Regeringsgatan 19, 111 53 Stockholm, Sweden, with registered number 556703-7495), and are effective as of the date that Customer accepts the Agreement (the "Effective Date").
These Master Terms and Conditions were last updated on March 3rd, 2022. Capitalized terms used but not defined herein will be as defined below in Section 1 ("Definitions").
TABLE OF CONTENTS
- Account and Account Security
- Term and Termination
- Use of the Megaphone Platform
- Ownership and Proprietary Rights
- Licenses Granted by You
- Representations and Warranties; Disclaimer
- Linked Services' Terms and Conditions
1.1 "Advertising," "Advertisement," or "Ad" means any commercial message or other content that promotes goods and/or services to listeners of Customer's Podcasts.
1.2 "Affiliate" of a party means a legal entity that controls, is controlled by, or is under common control with such party.
1.3 "Agreement" means the contract formed between You and Spotify when You use the Service or place an Order, the terms and conditions of which are comprised of, collectively: these Master Terms and Conditions (including the Platform Policies) and all Order Forms (as applicable).
1.4 "Feedback" means any feedback, ideas or suggestions in connection with the Services that You provide to Spotify.
1.5 "Filled" means that an Ad is actually delivered, as determined by Spotify.
1.6 "Malicious Code" means code, files, scripts, agents or programs intended to do harm, including, logic, viruses, worms, time bombs and Trojan horses.
1.7 "Megaphone Platform" is Spotify's proprietary, Internet-delivered PaaS platform of servers, software and related technology (currently called "Megaphone" as of the Effective Date and includes any successor versions or future names thereof), that is hosted, served or managed by Spotify or Spotify's third-party service provider, and furnished to You under this Agreement. The Megaphone Platform provides the ability to: (1) utilize our content management system ("CMS") to create Podcasts for distribution via an RSS feed to podcasting applications; (2) dynamically insert Advertising into podcast episode content; and (3) access reporting related to performance of podcasts and related Advertising.
1.9 "Order Form" means an ordering document specifying the Services to be provided, any additional terms and conditions applicable to a Service, and the fees paid by Customer to Spotify for the Services provided hereunder, and that is entered into between You and Spotify or any of our Affiliates. All Order Forms will be governed by and subject to these Master Terms and Conditions.
1.11 "Podcast" or "podcast" means a digital audio file received or accessed on demand, which may be distributed by digital download, streaming or RSS feed or other similar technology, which allows end users to receive audio file(s).
1.12 "Received" means that an Ad request has been received by Spotify's designated ad server, as determined by Spotify. For the avoidance of doubt, to the extent Customer and Spotify's ad server do not properly connect, such that Spotify cannot effectively serve Ads (regardless of whether those impressions are counted and/or measured by Spotify), such impressions shall not be considered "Received."
1.13 "Service(s)" means the products and Services that are ordered by You under an Order Form or by clicking a box indicating your acceptance (e.g., access to the Megaphone Platform).
1.14 "Service Fees" means amounts owed by Customer to Spotify pursuant to Customer's Order Form. Service Fees include, but are not limited to, Megaphone Platform subscription and overage fees.
1.15 "Spotify IP" will be as defined in Section 5.2, together with any and all upgrades, improvements, alterations or modifications based on or to any of the foregoing.
1.16 "Your Content" means any and all Podcasts, metadata, audio files, attachments, text, images, advertising creative and other content that You upload or submit to the Megaphone Platform.
When You register to use the Megaphone Platform, Spotify will provide tools to authenticate use of your account, which may include, but are not limited to, username, password and third party authentication services provided by Google. You must ensure that the contact information that You provide is, and remains, valid throughout the Term (as defined below).
You are solely responsible for maintaining the confidentiality and security of your username and password, and You will remain responsible for all use of your username and password, and all activity emanating from your account, whether or not such activity was authorized by You.
3.1 Term. Reference Order Form, if applicable, for information on the term of this Agreement ("Term").
3.2 Termination. Either party may terminate this Agreement (including any Order Form) immediately if the other party breaches any material provision and fails to cure its breach within thirty (30) days after receiving the other party's written notice by email identifying the breach. In addition, Spotify may discontinue or suspend your access to the Megaphone Platform and any Service immediately if any of the following occurs: (a) You fail to make a payment for 30 days following notice of its due date; (b) You have (or Spotify reasonably suspects that You have) breached or misappropriated or infringed Spotify's intellectual property or proprietary rights in the Megaphone Platform as determined by Spotify in its sole discretion; (c) You have (or Spotify reasonably suspects that You have) violated the Platform Policies; and/or (d) Spotify believes, as determined in its sole discretion, that your acts or omissions hereunder could cause material detriment to its brand and/or pose significant legal or reputational risk to Spotify. Spotify will restore access to the Megaphone Platform only after such violation(s) has been cured (if the violation is capable of cure, as determined at the sole discretion of Spotify).
3.3 Regulatory Requirements. If a regulatory body, or a court of competent jurisdiction, issues a rule, regulation, law or order that has the effect of materially increasing the cost for Spotify to provide access to the Megaphone Platform or canceling, changing, or superseding any material term or provision of this Agreement (collectively "Regulatory Requirements"), this Agreement shall be deemed modified in such a way as Spotify determines in its sole discretion is necessary in order to comply with such Regulatory Requirement(s). Should You object to any of those modifications, You may terminate this Agreement upon written notice to Spotify within thirty (30) days from the date that the Regulatory Requirements are effective.
3.4 Effects of Termination; Surviving Provisions. Upon expiration or termination of this Agreement for any reason: all rights and obligations of the parties will cease, except that the following provisions of this Agreement (together with any outstanding payment obligations owed to Spotify) will survive any termination or expiration of this Agreement: Section 3.4 (Effects of Termination; Surviving Provisions); Section 4.2 (Prohibited Uses; Restrictions on Your Use of Data); Section 5 (Ownership and Proprietary Rights); Section 7 (Representations and Warranties; Disclaimer); Section 7.3 (Liability Limitation; Damages Exclusion); Section 8 (Indemnification); Section 10 (Confidentiality); and Section 11 (General). Notwithstanding any provision of a surviving provision, You will have no further right to access or use the Megaphone Platform except that if You terminate the Agreement for Spotify's uncured breach pursuant to Section 3.2, You will be entitled to a pro rata refund of any prepaid, unused subscription fees (as defined in the applicable Order Form), as applicable. In addition, termination of the Agreement will not affect the rights of any listeners who downloaded Your Content prior to termination.
Following cancellation, termination or expiration of this Agreement, we will make Your Content available to You for export or download for no more than thirty (30) days. After such 30-day period, we will have no obligation to maintain or provide any of Your Content. It is your responsibility to redirect Your Content to different feeds; provided, however, that Spotify will not help redirect Your Content to different feeds upon any such cancellation, termination or expiration of the Agreement (or sooner if agreed by Spotify, as applicable) unless and until all outstanding invoices/payments have been paid to Spotify under this Agreement.
Subject to your compliance with the terms and conditions of this Agreement, including, but not limited to, payment of the fees set forth in the Order Form, Spotify grants You a limited, personal, non-exclusive, revocable and non-transferable right and license to use the features and functionality of the Megaphone Platform during the Term, solely for your internal business purposes.
4.1 APIs. Spotify may, as applicable, make certain application programming interfaces (APIs), API access tokens, HTML scripts, data import tools, or other software available to You as part of the Megaphone Platform (collectively, "Megaphone APIs"). In such event, Spotify grants You a non-exclusive, non-transferable license, during the Term, to use the Megaphone APIs solely to access and use the Megaphone Platform in accordance with this Agreement.
4.2 Prohibited Uses; Restrictions on Your Use of Data. You will not: (a) sell, rent, sublicense or lease any part of the Megaphone Platform to any third party; (b) take any actions to artificially alter the download numbers of the Podcasts as measured by the Megaphone Platform; (c) interfere with the Megaphone Platform or disrupt any other user's access to the Megaphone Platform; (d) reverse-engineer, decompile, disassemble, modify, or create derivative works based on the Megaphone Platform, the Spotify IP, or any part thereof; (e) submit to the Megaphone Platform any content or data that contains mass mailings or any form of "spam"; (f) interfere or attempt to interfere with the proper working of the Megaphone Platform, including the submission of any Malicious Code to the Megaphone Platform; (g) use any robot, spider, data scraping, extraction tool or similar mechanism with respect to the Megaphone Platform; or (h) access the Services for any competitive purposes.
4.3 Spotify Audience Network. If You opt in to participate in the Spotify Audience Network, You acknowledge and agree that Spotify shall have the right to sell Advertisements and to place such Advertisements within Your Content in accordance with the additional terms agreed between You and Spotify.
4.4 Payment Terms. All invoices are payable by Customer to Spotify net thirty (30) days from the invoice date. All Service Fee amounts are in U.S. Dollars. Past due amounts shall bear a late payment charge, until paid, at the rate of 1.5% per month or the maximum amount permitted by law, whichever is higher. All Service Fees paid hereunder are non-refundable. Unless otherwise directed by Spotify to pay via credit card, Customer shall send payments to the payment address specified in the Agreement (or a successor address of which Spotify notifies Customer) or, via electronic funds transfer, using the account and routing information provided by Spotify. All applicable fees and any additional payment terms for the Services provided under this Agreement will be as set forth on the corresponding Order Form. Unless otherwise expressly set forth in an Order Form to the contrary, Spotify measurements shall always control over any third party reporting statistics for reporting impressions. Notwithstanding the foregoing, some advertisers may require Spotify to track and bill impression delivery using third party tags. In the event of any discrepancy between such third party reporting and the internal calculations by Customer, Spotify will rely on such third party tags to calculate the revenue to be paid by advertisers under the Spotify Audience Network program. For the purposes of clarity, in the event that the Spotify Audience Network is obligated to bill advertisers in accordance with third party delivery numbers, the corresponding publishing partner (i.e. Customer) will be paid out based on that metric as well. For the avoidance of doubt, to the extent Spotify does not deem an impression to be either "Filled" or "Delivered," as applicable, Spotify shall not owe any associated payment to Customer for such impression(s). Finally, Spotify reserves the right upon request (email to suffice) to require that Customer provide a credit card for Spotify to retain for the purpose of charging any outstanding fees (e.g., fees at least ten (10) days overdue).
4.5 Taxes. Unless stated otherwise, the amounts that the parties must pay under this Agreement are exclusive of VAT, GST, HST, sales taxes or other similar taxes, duties, charges or assessments ("Indirect Taxes"). If Indirect Taxes are payable by law, on any supply made under this Agreement by the supplier, the recipient must pay the Indirect Tax amount to the supplier. For purposes of providing Spotify an invoice, Customer agrees to allow "self billing" such that Spotify (or its agent) may create an invoice on Customer's behalf. Spotify's payment of an invoice will not later prevent Spotify from disputing the invoiced amounts pursuant to any rights herein. Spotify may recoup any amounts due to Spotify from Customer by withholding such amounts from any Fees otherwise due under this Agreement and providing notice thereof. In the event that Customer's bank or financial institution charges or assesses a fee for the receipt of payments from Spotify (or its authorized payment provider) then, as between Spotify and Customer, such fee shall be Customer's responsibility. Where required by the law of a jurisdiction, each party will provide the other with a valid VAT registration number and if requested, a declaration as to VAT registration status. If any circumstance beyond the control of the parties changes, or the VAT registration number provided by a party is, or becomes, invalid during the period of this Agreement, the parties will cooperate to credit and issue new invoices consistent with any VAT requirements as required by the law of the relevant jurisdiction. Spotify will not pay to Customer any amount on account of any interest or penalties associated with the underpayment of any VAT by Customer.
Each party will fulfill its obligations relating to Indirect Taxes including any obligation to pay Indirect Tax where payable. The Parties will use their best efforts to ensure the correct Indirect Tax outcomes. Customer will provide all information requested by Spotify from time to time to ensure the proper tax reporting and treatment of payments contemplated herein. Each Party shall be solely responsible for the payment and reporting of all taxes applicable to its own income and activities in each jurisdiction where applicable. Spotify assumes no liability or responsibility for any tax obligations and related compliance and filings arising on the Customer as a result of this Agreement or otherwise.
Spotify reserves the right to deduct and withhold tax from any payment made under or in connection with this Agreement and shall pay the Customer on the amount due after the deduction or withholding, if required by law based on Spotify's judgment. If deductions or withholdings of tax have been made, Spotify shall pay the withheld tax to the appropriate tax authority and provide copies of receipts for such withholding tax to Customer. Customer is obliged to provide evidence of any tax treaty entitlement that, in Spotify's judgement, satisfies the requirements of the applicable law, as necessary to claim exemption from or reduction of withholding tax. All payments made by Spotify under or in connection with this Agreement will only be remitted to bank accounts within the country of residence of the payee.
Digital service taxes ("DST"), or other similar gross based taxes on advertising services, will be added on top of agreed amounts for all jurisdictions where DSTs are enacted.
5.1 Your Content. As between You and Spotify, You own and/or control Your Content. Spotify does not claim any ownership rights to nor any responsibility over Your Content. You acknowledge and agree that Your Content remains solely your responsibility.
In addition to, and without limiting the conditions set forth in Section 4, You must not upload, store, distribute, send, transmit, display, perform, make available, continue to make available or otherwise communicate to the public any of Your Content to which You do not hold the necessary rights. Any unauthorized use of copyright protected material within Your Content (including by way of reproduction, distribution, modification, adaptation, public display, public performance, making available or otherwise communicating to the public via the Megaphone Platform), independent of whether it is or becomes unauthorized, may constitute an infringement of third party rights and is strictly prohibited.
5.2 Spotify IP. Spotify retains all right, title and interest (including, but not limited to, all intellectual property and proprietary rights therein) in and to: (a) the Services, including the Megaphone Platform and the technology and software used to provide it; the Megaphone APIs; the Spotify Audience Network; and any and all technology used to produce, store and/or distribute, as applicable, the Podcasts and the Advertising, as well as any and all related trademarks, logos, service marks (e.g., Megaphone and Spotify) (collectively, "Marks"); and (b) all data, information and other content (excluding Your Content) contained in or derived from the Megaphone Platform (collectively, "Spotify IP"). Except as expressly set forth in this Agreement, Spotify shall have the right to use or disclose the Spotify IP, at its sole discretion. In addition, except for your limited rights to access and use the Megaphone Platform as expressly set forth in this Agreement, nothing in this Agreement licenses or conveys any right to the Spotify IP to anyone, including You.
5.3 Feedback. You acknowledge that the Feedback is not confidential and You authorize Spotify to use that Feedback without restriction and without payment to You.
5.4 Privacy. The processor data protection terms set forth at https://www.spotify.com/us/legal/megaphone-dpa/#controller-to-processor-data-processing-addendum shall be incorporated by reference, and shall apply whenever Spotify acts as a Processor, as such term is defined under the EU General Data Protection Regulation 2016/679 (the "GDPR"), to You. Such data protection terms will supersede any previously entered data protection terms or similar documents between the parties with respect to Spotify's role as a Processor to You. If not otherwise set forth in a Service schedule to an Order Form, Spotify shall be considered a Controller of personal data of EEA data subjects, as such terms are defined under the GDPR, and the controller data protection terms set forth at https://www.spotify.com/us/legal/megaphone-dpa/#controller-to-controller-data-processing-addendum shall apply.
6.1 Your Content. By uploading or posting Your Content to the Megaphone Platform, and entering into this Agreement, You hereby grant Spotify the worldwide, non-exclusive, royalty-free right (including the right to sublicense) to: (a) use, copy, transmit, modify, publicly perform, display publicly, promote, market, distribute, and otherwise make Your Content available to end users and third parties including via download and streaming; and (b) to use Your Content for analytics, platform monitoring, advertiser studies (e.g., brand lift studies), development and improvement.
6.2 Data Use. Unless otherwise set forth in an Order Form, You acknowledge and agree that Spotify will be entitled to use data contained in or derived from Your Content and your usage of the Service both during and beyond the term of your Agreement for performance of the Services, analytics, platform monitoring, and product improvement, provided that Spotify will not identify You externally in connection with such data usage.
6.3 Third Party Service Providers. In addition to, and without limiting the generality of the licenses in Sections 6.1 and 6.2, Spotify may also distribute, use and/or provide Your Content and certain associated data (including, but not limited to, IP addresses and user agents): to Spotify's service providers who act on Spotify's behalf in providing the Megaphone Platform and/or the Services (e.g., third party hosting providers, analytics providers, transcription services, etc.), as well as to additional third parties chosen by Spotify that are used to provide various additional other value-added services which may be offered by Spotify from time to time in connection with the Services provided under this Agreement, as applicable.
6.4 Linked Services. In addition, You acknowledge that the foregoing licenses in this section will extend to other users of the Megaphone Platform, and to operators and users of any other websites, applications and/or platforms to which Your Content has been shared or embedded by Spotify including, but not limited to, third party platforms and/or services where Podcasts and related content are made available (collectively, "Linked Services"). The licenses granted in this section are granted separately with respect to each item of Your Content that You upload to the Megaphone Platform. Licenses with respect to audio Content, and any images or text within your account, will (subject to Section 3) terminate automatically when You remove such Content from your account.
Removal of audio files in Your Content from your account will result in the deletion of the relevant files from Spotify's systems and servers. However, You acknowledge that once Your Content is distributed to a Linked Service, Spotify is not obligated to ensure the deletion of Your Content from any servers or systems operated by the operators of any Linked Service, or to require that any user of the Megaphone Platform or any Linked Service deletes any item of Your Content. In addition, listeners who have downloaded Your Content prior to termination will be able to keep such copies.
7.1 General. Each party represents and warrants that it has the necessary authority to enter into this Agreement and grant the rights as set forth herein. Additionally, You represent and warrant that: (a) You have obtained and possess all licenses, rights, consents and permissions necessary to submit Your Content to the Megaphone Platform and to grant Spotify the rights and licenses set forth in this Agreement for Spotify's use of Your Content as contemplated in this Agreement, including, but not limited to, all of the music used in Your Content; (b) all rights, licenses, consents, waivers, clearances, or approvals necessary required from any collecting society (including but not limited to collecting societies such as STIM, MCPS, PRS, PPL and VPL) or any other party necessary in order for Spotify to lawfully exercise and enjoy its rights granted under this Agreement (including, without limitation, all necessary music (e.g., with respect to all sound recordings, audio-visual master licenses and consents, etc.), synchronization, mechanical transfer and performing rights clearances) have been or will be obtained and paid for and shall be maintained during the Term by You; (c) neither Spotify nor any Linked Service will need to obtain licenses from any third party or pay royalties to any third party whatsoever (including, but not limited to, any unions, artists, or performing rights societies (e.g., ASCAP, BMI, SESAC, etc.)) for use of Your Content as contemplated under this Agreement; (d) Your Content does not and will not infringe upon any third party's rights, including any intellectual property rights (including any copyright, trademark, patent, or privacy rights, or any other proprietary rights); and (e) You will comply at all times with this Agreement (including, but not limited to, the requirements set forth in the Platform Policies), and You will comply at all times with all applicable laws and regulations; and (f) any materials uploaded to the Megaphone Platform including, without limitation, Your Content, does not contain anything that is defamatory, libelous, or that violates any confidentiality obligations You have with a third party.
7.2 Disclaimer. Spotify reserves the right to modify the Megaphone Platform from time to time during the Term at Spotify's sole discretion. You acknowledge and agree that the form and nature of the Megaphone Platform that Spotify provides may change from time to time without prior notice to you, including without limitation security patches, added functionality, and other enhancements. In some instances, enhancements, updates, upgrades, and new additions to the Megaphone Platform may involve incremental fees, determined at Spotify's sole discretion, and shall be subject to written authorization from You which may be provided by email, click-through agreement and/or continued use of the Megaphone Platform. You acknowledge that You are responsible for backing up Your Content and that Spotify will not have any liability to You for any loss of any of Your Content whatsoever.
In addition, You acknowledge that, as an internet-delivered software application, the Megaphone Platform may experience periods of downtime, including but not limited to scheduled maintenance, and third-party service outages. Spotify has no obligation to screen or monitor any content and does not guarantee that any content available on the Megaphone Platform complies with this Agreement. You therefore use the Megaphone Platform at your own risk.
ACCORDINGLY, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, SPOTIFY PROVIDES THE MEGAPHONE PLATFORM ON AN "AS IS" AND "AS AVAILABLE" BASIS; AND SPOTIFY MAKES NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE MEGAPHONE PLATFORM, INCLUDING ITS DOCUMENTATION, THE MEGAPHONE PLATFORM SOFTWARE AND THE MEGAPHONE APIs, OR ANY DATA OR CONTENT MADE AVAILABLE THROUGH THE MEGAPHONE PLATFORM (EVEN IF LINKED TO FROM THE MEGAPHONE PLATFORM) INCLUDING ANY ADS THAT ARE DELIVERED THROUGH A SERVICE. SPOTIFY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCURACY AND ANY OTHER WARRANTY THAT MIGHT ARISE UNDER ANY LAW. SPOTIFY DOES NOT WARRANT THAT THE MEGAPHONE PLATFORM WILL BE ERROR-FREE OR OPERATE WITHOUT INTERRUPTIONS OR DOWNTIME.
7.3 Liability Limitation; Damages Exclusion. EXCEPT IN CONNECTION WITH YOUR VIOLATION OF SECTION 4.2; BREACH OF YOUR CONFIDENTIALITY OBLIGATIONS UNDER SECTION 10, OR YOUR INDEMNIFICATION OBLIGATIONS UNDER SECTION 8 (COLLECTIVELY, THE "EXCLUDED DAMAGES"), (A) NEITHER PARTY WILL BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, OR PUNITIVE DAMAGES IN CONNECTION WITH ANY CLAIM OF ANY NATURE ARISING UNDER THIS AGREEMENT OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOST REVENUES OR PROFITS, OR LOSS OF GOODWILL OR REPUTATION), EVEN IF SUCH PARTY HAS BEEN GIVEN ADVANCE NOTICE OF SUCH POSSIBLE DAMAGES, AND (B) EACH PARTY'S TOTAL AGGREGATE LIABILITY FOR ALL CLAIMS OF ANY NATURE ARISING OUT OF THIS AGREEMENT WILL NOT EXCEED THE FEES ACTUALLY PAID TO SPOTIFY UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
Notwithstanding anything to the contrary, nothing in this section or this Agreement shall be construed to exclude or limit any liability of either party which cannot be excluded or limited under applicable law (such as for death or personal injury caused by negligence or for fraud or fraudulent misrepresentation).
You will indemnify, defend, and hold harmless Spotify and its Affiliates, and each of our and their respective directors, officers, shareholders, employees, agents, suppliers, partners, contractors, third-party licensors and representatives from and against all actions, damages, claims, liabilities, damages, losses, and expenses, including reasonable attorneys' fees, that arise from or relate to: (a) your activities on the Megaphone Platform; (b) your violation of any law or the rights of a third party; or (c) any breach or alleged breach of any of your representations, warranties or obligations set forth in this Agreement.
We will indemnify, defend, and hold harmless You from and against all third-party actions, claims, liabilities, and damages that arise from: (i) Spotify's gross negligence or willful misconduct arising out of its provision of the Megaphone Platform; and (ii) any claim that asserts or alleges that the Megaphone Platform infringes upon any third party intellectual property right.
The indemnifying party's obligations under this section are contingent on the indemnified party: (x) promptly providing written notice of the claim to the indemnifying party; provided, however, that any delay in providing such notice shall not relieve the indemnifying party of any of its obligations except to the extent that the indemnifying party is actually prejudiced by such delay, (y) giving the indemnifying party sole control of the defense and settlement of the claim, and (z) providing the indemnifying party, at the indemnifying party's expense, all reasonable assistance in connection with such claim. In no event will an indemnified party be liable for any settlement that admits any fault of or imposes any monetary liability on an indemnified party without its prior written consent (such consent will not be unreasonably withheld or delayed).
As used herein, the "Confidential Information" of a party (the "Disclosing Party") means all financial, technical, or business information of the Disclosing Party that the Disclosing Party designates as confidential at the time of disclosure to the other party ("Receiving Party") or that the Receiving Party reasonably should understand to be confidential based on the nature of the information or the circumstances surrounding its disclosure. By way of example, the Megaphone APIs, pricing for the Megaphone Platform, and information about Spotify's tool and feature upgrade pipeline are all Spotify's Confidential Information. Notwithstanding the foregoing, nothing will be construed to limit Spotify's ability to publicly disclose information about its data and to mention its partners and shows generally (e.g., on its website or in general marketing materials). Except as expressly permitted in this Agreement, the Receiving Party will not disclose, duplicate, or otherwise make available any Confidential Information of the Disclosing Party to any person or entity without the Disclosing Party's prior written consent. The Receiving Party will only use the Disclosing Party's Confidential Information to perform its obligations under this Agreement. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information to the extent required by law, provided that the Receiving Party: (a) gives the Disclosing Party prior notice of such disclosure so as to afford the Disclosing Party a reasonable opportunity to appear, object, and obtain a protective order or other appropriate relief regarding such disclosure (if such notice is not prohibited by applicable law); (b) uses diligent efforts to limit disclosure and to obtain confidential treatment or a protective order; and (c) allows the Disclosing Party to participate in the proceeding. Confidential Information does not include any information that: (x) is or becomes generally known to the public without the Receiving Party's breach of any obligation owed to the Disclosing Party; (y) was independently developed by the Receiving Party without the Receiving Party's breach of any obligation owed to the Disclosing Party; or (z) is received from a third party who obtained such Confidential Information without any third party's breach of any obligation owed to the Disclosing Party.
11.1 Governing Law and Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the United States (including federal arbitration law) and the State of New York, United States of America, without regard to choice or conflicts of law principles. You agree that any dispute arising from or relating to the subject matter of this Agreement or otherwise not subject to arbitration will be subject to the exclusive jurisdiction and venue of the Southern District of New York.
11.2 Relationship of the Parties. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect.
11.3 Order of Precedence. With respect to the following documents, in the event of any conflict, the order of precedence shall be as follows: any Order Form(s); these Master Terms and Conditions; and the Platform Policies.
11.4 Assignment. This Agreement is personal to You, and is not assignable, transferable or sublicensable by You except with our prior written consent. Spotify may assign, transfer or delegate any of our rights and obligations hereunder, in whole or in part, without your consent and without notice to You.
11.5 Force Majeure. Excluding Customer's payment obligations, neither party is liable for delay or default under this Agreement if caused by conditions beyond its reasonable control, whether or not foreseeable (e.g., technology malfunctions, outages of Internet Service; outages in third party hosted services (e.g., Amazon Web Services, Google Cloud Services, or the like), or any other Force Majeure Events). "Force Majeure Events" will mean: armed conflicts, famine, floods, Acts of God, pandemics, labor strikes or shortages, governmental decree or regulation, court order, severe weather, fire, earthquake, acts of terrorism, failure of suppliers, unavailability of communications transport facilities, and breakdowns in communications transport facilities, or any other reason where failure to perform is beyond the reasonable control, and not caused by the negligence, of the non-performing party.
11.6 Modifications. We reserve the right to modify or otherwise change this Agreement (including any Platform Policies) at any time by posting the updated Agreement to our website(s) or through a notice provided through the Services, via email or by another appropriate means of electronic communication. Any such changes will not apply to any dispute between You and us arising prior to the date on which we posted the revised Agreement incorporating such changes, or otherwise notified You of such changes. Unless we say otherwise in our notice, the updated Agreement will be effective immediately, and your continued access to or use of our Services after we post the updated Agreement or provide other notice of such updated Agreement will confirm your acceptance of the changes. If You do not agree to the updated Agreement, You must stop accessing and using our Services.
We also reserve the right to modify or discontinue, temporarily or permanently, or suspend the Services (or any part thereof) with or without notice. We may also impose limits on certain features and services or restrict your access to parts or all of the Services without notice or liability. You agree that we will not be liable to You or to any third party for any modification, suspension or discontinuance of Services.
11.7 Publicity. Except as otherwise permitted in this Agreement, neither party will use the other party's name or trademark in any advertising, written sales promotion, press releases and/or other public communication without the other party's prior written consent (email to suffice). Notwithstanding the foregoing, Spotify shall have the right to identify Customer as a customer of the Megaphone Platform including using Customer's name and trademarks in the performance of the Services, and for general marketing and promotion of the Megaphone Platform and related services.
11.8 Notices. All notices under this Agreement must be in writing and sent via internationally recognized delivery service or US mail to Spotify USA Inc. Attn: Legal Department, 4 World Trade Center, 150 Greenwich Street, Floor 62, New York, New York 10007, USA, with an electronic copy sent to email@example.com.
You consent to receive all communications including agreements, notices, disclosures or other information from Spotify electronically by email. Unless otherwise specified in this Agreement, all notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or email; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service.
11.9 No Waiver. Spotify's failure to enforce any part of this Agreement will not constitute a waiver of our right to later enforce that or any other part of this Agreement. Waiver of compliance in any particular instance does not mean that we will waive compliance in the future. In order for any waiver of compliance with this Agreement to be binding, we must provide You with written notice of such waiver through one of our authorized representatives.
11.10 Entire Agreement. This Agreement represents the entire agreement between Spotify and You with respect to your use of the Megaphone Platform. As between Spotify and You, this Agreement expressly supersedes all prior agreements and understandings regarding the Megaphone Platform and any subject matter contained in the Agreement.