T&Csfor Creators - Standard
August 21, 2024
Acast Terms and Conditions for Creators - Standard
The Platform and the Platform Services, as defined below, are provided to You by Acast AB (publ) a company registered in Stockholm, Sweden (“We” or “Acast”).
These Acast Terms and Conditions for Creators (the "Terms" or this “Agreement”) constitute a legally binding agreement between You (“You” or “you”) and Acast and contains the terms and conditions upon which Acast permits You to access and use the Platform, the Platform Services and all associated information and content therein (collectively referred to herein as the “Services”).
By clicking the checkbox stating that You accept these Terms You agree to be bound by and comply with the Terms (and any amendments thereto that Acast may publish from time to time). If You accept these Terms on behalf of a company or other legal entity, You represent and warrant that You have the authority to bind such entity to these Terms. If You do not have such authority, or if You do not agree with these Terms, You may not use the Services.
1. DEFINITIONS
1.1 In these Terms, unless otherwise expressly stated, the following terms shall have the meaning set out below, to be equally applicable to the singular and plural forms of such terms:
“Acast API” means certain programming interfaces, access tokens, HTML scripts, data import tools or other software forming part of the Platform.
“Acast Commercials” means a commercial message or Interactive Media (in each case, in any format) inserted into any Publication by the Platform (including but not limited to Ads and Sponsorships).
“Acast IP” means all Intellectual Property Rights in: (a) the Platform and the Platform Services, including but not limited to all Intellectual Property Rights related to the Services and all technology, software and code creating links and connections between Podcast Audio Files, Interactive Media, the Acast API, the design, images, information and other content and material on the Platform and in the Platform Services, including future developments and enhancements of the foregoing; and (b) Acast or its affiliates' trade names, trademarks, logos, copyrights, branding and all components thereof.
"Ad Break" means a break in an episode of the Publication where a Commercial may be inserted.
“Ad Marker” means a setting in the Platform for placement of an Ad Break.
“Ads” means a commercial message or Interactive Media (in each case, in any format), but excluding Sponsorships, inserted into any Publication by the Platform.
“Advertiser” means the person paying for Ads in any Publication.
“Advertising Partner” means a third party engaged by Acast for (i) selling, serving or producing branded content or Acast Commercials in a Publication; (ii) distribution of Publications on such third party’s platform; (iii) providing advertising technology (such as e.g. measurement and targeting), research, podcast data and/or (iv) providing other services for the purpose of increasing discoverability of Publication and/or sales of Acast Commercials in a Publication.
“Advertising Rate” means the price at which an Acast Commercial is sold.
“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.
“Community Guidelines” means the terms available at https://acast.com/en/community-guidelines, which may be updated from time to time and is incorporated herein by reference and made a part hereof.
“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.
“GDPR Privacy Policy” means the policy available at https://acast.com/general-data-protection-regulation-gdpr-privacy-policy, which may be updated from time to time and which is incorporated herein by reference and made a part hereof.
“Intellectual Property Rights” means: (a) copyrights, moral rights, performance rights, database rights and rights in designs; (b) 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; (c) patents and rights in inventions; (d) rights in each of know-how, confidential information and trade secrets; (e) any other intellectual property rights, including all rights and interests in domain names and social media accounts; and (f) all rights that are similar or equivalent to each of (a) to (e) now or in future, in each case of (a) to (f) anywhere in the world, and whether registered or unregistered (including applications, rights to apply and rights to claim priority).
“Interactive Media” means images, content descriptions and similar, links to external websites, videos, iFrame and/or other content added to a Publication by You through the use of the Platform 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.
“Net Advertising Revenue” means the amount actually received by Acast for selling and serving Commercials, less applicable taxes and Advertising Partner fees.
“Plans” means the subscription models available to purchase in order to gain access to the Services.
“Platform” means Acast’s entire backend platform, including, but not limited to, any and all software which enables a Publication to be made available from Acast’s controlled servers and accessible through third party media players.
“Platform Services” means any service that Acast in its sole discretion and from time to time decides to make available on the Platform.
“Podcast Audio File” means the podcast audio file and all episodes (including, but not limited to, all bonus material) for Publications uploaded or that should be uploaded to the Platform for distribution to users.
“Podcaster Content” means any and all Publications, related data, metadata, files, audio files, attachments, text, images, commercial messages (including Ads and Sponsorships) and other content that You upload or submit (or which is uploaded or submitted using your account) to the Platform.
“Publication” means (i) any and all audio in all languages (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 or any other feed used to distribute the Podcast Audio Files or the content described in (i), (iii) and (iv); (iii) any and all related Interactive Media; and (iv) any and all audiovisual content (such as e.g. video) created using any part of the audio described in (i).
“Renewal Date” means the date and time (Your local time) Your subscription to the Platform Services will renew itself.
“Services” means the Platform and the Platform Services, collectively.
“Sponsors” means the person paying for a Sponsorship in any Publication.
“Sponsorships” 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).
Standard Ad Inventory” means the minimum number of Ads and Ad Breaks in each episode of the Publication, which shall be: one (1) pre-roll Ad Break with two (2) Ads, two (2) separate mid-roll Ad Breaks with two (2) Ads, and one (1) post-roll Ad Break with two (2) Ads, unless otherwise agreed by the Parties.
“Standard Sponsorship Inventory” means the minimum number of Sponsorships and Ad Breaks in each episode of the Publication, which shall be: one (1) pre-roll Ad Break with one (1) Sponsorship, one (1) mid-roll Ad Break with one (1) Sponsorship, and one (1) post-roll Ad Break with one (1) Sponsorship, unless agreed otherwise by the Parties.
“Talent” means You, the host of or voice associated with any Publication.
“Terms” means these Terms, applicable to your use of the Platform and the Platform Services and all associated information and content therein.
“Third-Party Services” means the services described in Section 9 of these Terms.
"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.
2. THE SERVICES
2.1 Acast shall make available the Services, as well as all associated information and content therein, as set out in these Terms.
2.2 Acast shall use commercially reasonable efforts to make the Services available 24 hours a day, and 365 days a year, except for scheduled and unscheduled maintenance.
2.3 In order to use the Services, You must obtain access to the internet. Acast is not responsible for any service fees associated with such access, nor is Acast responsible for any costs or equipment necessary for You to make such connection to the internet or be able to use the Services.
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 Services including any and all provided technical solutions, at any time upon three (3) months written notice to You.
3. ACCOUNT
3.1 You need to create an account with Acast to log in and access the Platform. We may require verification of your identity via credit card in order to create Your account. Your account is personal to You and may not be transferred to or shared with others. You warrant that all user information provided by You to Acast is true and correct and that, when necessary, You will update your user information so that it remains true and correct at all times.
3.2 You are responsible for keeping your account and login details secure and You are responsible for all activities that are carried out under your account. You should choose a strong, unique password, which You will not disclose to anyone else, or use with any other service. Acast will not be responsible for any losses suffered by You in circumstances where your account is used by someone else, except where this is demonstrably caused by Acast's negligence.
4. ACCEPTABLE USE OF THE SERVICES
4.1 You must be at least eighteen (18) years old and/or otherwise be authorized to enter into agreements and accept to be bound by the Terms in order to use the Services.
4.2 Subject to your compliance with the terms and conditions of the Terms, Acast grants You a limited, personal, non-exclusive, revocable and non-transferable right and license to use the features and functionality of the Services during the term of Your agreement with Acast.
4.3 You agree that when using the Services, You will not:
A. archive, re-produce, modify, copy, distribute, create derivative works from, translate, resell, perform or display to the public, publish, license (except as expressly permitted in these Terms) or permit access to the Services 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 the Publications as measured by the Platform;
C. act in any way that may affect Acast’s ability to accurately count listens, impressions or the placement of advertisements according to Acast’s assumed standards;
D. interfere with the Services or disrupt any other user's access to the Services;
E. unless otherwise provided for under applicable law: (i) decompile, reverse engineer or disassemble any software provided to You or that is accessible through the Platform; (ii) attempt to gain unauthorised access to the Platform, or attempt to discover the underlying source code or structure of the Platform including by circumventing, removing, or deactivating any protections; and/or (iii) use any robot, spider, scraper or other automated means to access the Platform 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. not knowingly or intentionally introduce into the Platform any program, routine or device which is designed to disable or otherwise interfere with or harm the Platform 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;
H. share account credentials or give others access to your account.
4.4 In addition to, and without limiting the generality of the foregoing, You may not (i) access the Services for purposes of monitoring its performance, functionality or availability, or for any other competitive purposes; or (ii) use the Services other than in compliance with the Terms and any amendment hereto, applicable laws and regulations and the Community Guidelines.
5. OWNERSHIP AND RIGHTS
5.1 Acast is and remains the sole owner of all rights in the Acast IP. Acast hereby grants to You a non-exclusive, non-transferable, non-sublicensable, revocable worldwide license for the duration of this Agreement to use the Platform and the Acast IP in accordance with these Terms. Acast reserves any and all rights not expressly granted to You. These Terms do not confer upon You any right to, or in respect of, the Platform, the Platform Services or to any technology, software, information or material being part of such services. Acast expressly reserves all Intellectual Property Rights not expressly granted to You hereunder.
5.2 As between You and Acast, all your Podcaster Content is owned by You or validly licensed by You.
5.3 Unless otherwise expressly agreed by You and Acast, we do not claim any ownership rights to nor any responsibility over your Podcaster Content. You acknowledge and agree that your Podcaster Content remains solely your responsibility.
5.4 You may not upload any Podcaster Content to the Platform which You do not hold the necessary rights (including but not limited to rights to any sound recordings and/or musical works, lyrics, compositions etc. included in the Podcaster Content). Acast expressly reserves the right to charge You any reasonable and/or verifiable out of pocket costs incurred by Acast for the distribution of the Publication. Any unauthorized use of copyright protected material within your Podcaster Content (including by way of reproduction, distribution, modification, adaptation, public display, public performance, making available or otherwise communicating to the public via the Platform), independent of whether it is or becomes unauthorized at a later point is strictly prohibited.
5.4 You may not upload any Podcaster Content to the Platform that is defamatory, offensive or illegal, infringes the Intellectual Property Rights of a third party, or otherwise violates the Terms or the Community Guidelines. Acast reserves the right to remove any Podcaster Content that violates these Terms, Community Guidelines or any applicable law or which Acast for any other reason deems may harm Acast’s business.
5.5 By uploading Podcaster Content to the Platform, You hereby grant to Acast an exclusive, sub-licensable, irrevocable, fully paid, royalty-free, worldwide license to host, use, copy, digitally transcode, transcribe, transmit, modify, publicly perform, display publicly, communicate to the public on a pre-programmed and on-demand basis, promote, market, distribute, make use of Podcaster Content and cover art, host imagery, show and/or episode descriptions for marketing and promotional purposes, monetise (subject to Section 7), and otherwise make your Podcaster Content available to end users and third parties including via download and streaming during the term of your agreement with Acast. In addition, You acknowledge that the foregoing licenses in this Section will extend to the end users of Acast's website, and to operators and users of any other websites, apps and/or platforms to which your Podcaster Content has been shared, distributed or embedded by Acast including, but not limited to, third party platforms and/or services where Publications and related content are made available.
5.6 By uploading Podcaster Content to the Platform, You expressly agree that Acast shall have the right to use any and all cover art and podcast imagery for marketing and promotional purposes of the Publication and Acast products and Services, including but not limited to in any PR, marketing campaigns, sales pitches and on Acast’s websites.
5.7 Upon Acast’s request, you shall add the Acast logo (as provided to you by Acast) on any cover art associated with the Podcast Content / Publication.
5.8 With respect to the automatic insertion of mid-roll Ad Breaks in the Publication, Podcaster hereby waives all rights to object to derogatory treatment of the Publication to which Podcaster may now or at any future time be entitled to under copyright law in force anywhere in the world from time to time.
6. SUBSCRIPTION PLANS
6.1 Acast provides its Services to You on a subscription basis which requires payment to Acast in regular intervals. The Acast Services are bundled into Plans which may have different terms, prices and associated Services. A list of the plans in place from time to time is publicly available and can be found at this address https://acast.com/pricing or upon request. Acast reserves the right to amend (i) any paid Plan You may have subscribed to by providing to You not less than 14 days' notice of such change; and (ii) any free Plan You may have subscribed to at any time, notwithstanding Section 11.
6.2 You are required to make payment on the commencement of Your Plan and pay the subscription fees as they fall due. Failure to make full payment of your subscription fees may result in suspension of Services to You until such arrears are cleared and repeated lapses in payment may result in a complete termination of your account, which may result in the deleting of your content.
6.3 Should You decide to terminate subscription to your Plan(s) pursuant to Section 10.2 below or should Acast be forced to rely on the terms stated in Section 10.3, Acast shall have no obligation to provide the Service to You or to repay and/or refund any subscription fees already paid by You.
7. COMMERCIALS
7.1 You agree that:
A. Acast has the exclusive right to host, distribute and monetise the Publication and you expressly agree that you will not place advertisements in your Publication nor will you approach or enter into any agreement with any Advertiser or Advertising Partner for the purpose of selling advertisement in connection with the Publication.
B. Acast’s failure to secure any Acast Commercial for your Publication or a specific number of impressions shall not constitute a breach of this Agreement.
C. You shall upon Acast’s request make the Standard Ad Inventory and Standard Sponsorship Inventory available in each episode of the Publication and ensure that any Ad Markers are correctly placed.
D. You shall allow Acast to (i) use Unified Ad Slots to fill the Standard Ad Inventory and Standard Sponsorship Inventory with both Sponsorships and Ads as available, and (ii) automatically insert mid-roll Ad Breaks into the Publication.
E. You shall allow Acast to use Unified Ad Slots to fill the Standard Ad Inventory and Standard Sponsorship Inventory with both Sponsorships and Ads once available.
F. Acast may propose Sponsorships to You from time to time. You have the right to refuse a Sponsorship but where a Sponsorship has been agreed, you will make Talent available on terms to be agreed by you and Acast and ensure that Talent participates in a meaningful and timely way in the recording thereof and delivers all parts of the Sponsorship as agreed.
7.2 Acast and You agree to share Net Advertising Revenue from any Acast Commercials placed on any Publication as follows: Acast 50% / You 50%. Acast makes no representation or warranty that any Acast Commercial and/or exploitation of rights granted hereunder will generate any particular amount of Net Advertising Revenue.
7.3 On or around the 15th of each month Acast shall provide you with a written statement including information on your share of generated and received Net Advertising Revenue from Acast’s sales of Acast Commercials (except Net Advertising Revenues related to programmatic sales which for technical reasons will be reported later). Based on and in accordance with such statement and subject to Acast’s self-billing procedure which You hereby agree to, Acast will issue an invoice on your behalf. Subject to Section 7.5, Acast shall pay such invoice no later than ninety (90) days after receipt of such invoice. In certain markets, the self-billing procedure is not available. In such event, you shall send a valid invoice to Acast based on the written statement provided by Acast to podpayment@acast.com or otherwise as instructed by Acast from time to time.
7.4 Subject to Section 7.5, any objection to a statement/self-bill/invoice sent by Acast must be notified to Acast within two (2) months after receipt of such statement/self-bill/invoice. You agree 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/invoice you deem is incorrect. A general objection shall not be deemed adequate and sufficient for this purpose.
7.5 To the extent permitted under applicable law, if Acast does not receive a self-bill/invoice or any other necessary information (as applicable) from You to pay You Your share of the Net Advertising Revenue for any months during the term of this Agreement within six (6) months of this Agreement’s expiry or termination, You hereby agree that any amounts due to You pursuant to such self-bill/invoice shall be the property of Acast.
7.6 Unless Your share of the Net Advertising Revenue exceeds the amount specified by Acast in this Section 7.6, Acast shall not make any payments to you under Section 7.3. Your minimum share of Net Advertising Revenue to qualify for payment under Section 7.3 is:
For the UK and Ireland: 100 GBP
For Europe (other than the Nordics): EUR 100
For the US, Mexico and Canada: 100 USD
For the Nordics and all other regions: 1000 SEK
7.7 Acast agrees that all Acast Commercials shall: (a) comply with all applicable laws and regulations, including those applicable laws and regulations; (b) not contain explicit, or graphic descriptions or accounts of sexual acts or is threating, abusive, harassing, defamatory, libellous, misleading, deceptive, fraudulent, invasive of another’s privacy rights; (c) not infringe upon or violate any third party rights, including Intellectual Property Rights.
7.8 Acast will use reasonable efforts to ensure that any Acast Commercials sold by Advertising Partners or networks or other third parties comply with the terms of this Agreement. For the sake of clarity, Acast has the right, at its sole discretion, to remove any Acast Commercial or advertisements from a Publication if Acast assesses that an Acast Commercial or any other advertisement may violate these Terms, Community Guidelines or any applicable law or for any other reason may harm Acast’s business.
7.9 Acast shall have the right to sell Acast Commercials and contract with its respective Advertisers in accordance with standard rates determined in the selling party’s business judgment.
7.10 Any unsold Standard Advertising Inventory and Standard Sponsorship Inventory in a Publication may be used by Acast for advertising and promoting You, Acast, any other content hosted by Acast, or any other products or services.
7.11 You are fully responsible for reporting and paying all taxes and related fees related to any payment due to or received by You under this Agreement and You shall fully indemnify Acast for any claims related thereto.
7.12 Acast may engage third parties for production, advertising technology (such as e.g. measurement and targeting), research, podcast data and/or other services that aim to increase revenues. Any amounts received by Acast as a result of such engagements shall not be included in the Net Advertising Revenue.
7.13 Acast is granted a right to use Acast Commercials for the purpose of demonstrating Acast's products and services for podcast creators and Advertisers.
8. DATA PRIVACY
8.1 Acast will process personal data on Your behalf if such personal data is included in the Podcaster Content. 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 the Podcaster Content. To the extent that Acast processes any personal data on Your behalf, the Data Processing Agreement (“DPA”) available at https://www.acast.com/data-processing-agreement and which is hereby incorporated by reference shall apply.
8.2 You acknowledge that Acast, during the term of Your agreement with Acast and for a reasonable period thereafter, will process personal data pertaining to You and/or Your employees and/or representatives (as applicable) as is necessary for the performance of the contractual relationship between You and Acast. Acast is the controller (as defined in Applicable Privacy Laws) for the processing of such personal data and will process it to provide the Services, to send You relevant information regarding Acast, its Services and/or Your account and for any other purpose set forth in Acast’s GDPR Privacy Policy. Additional information regarding the categories of personal data We collect, for what purpose We collect the personal data and recipients of Your personal data (if any) is specified in the GDPR Privacy Policy. You undertake to inform Your employees and/or representatives (as applicable) of such processing by referring to the GDPR Privacy Policy. By accepting these Terms You acknowledge and agree to Acast’s processing of Your (and Your employees/representatives, as applicable) personal data pursuant to Acast's GDPR Privacy Policy, as amended from time to time.
8.3 Acast may send newsletters, offers, information, updates, tips and other direct marketing messages related to Acast, its products and/or services. You hereby consent to Acast’s use of Your and/or Your employees and/or representatives' contact details (i.e. name and e-mail address) for the aforementioned purposes. You may withdraw Your consent at any time.
9. THIRD PARTY SERVICES
9.1 The Platform may, from time to time, contain links to Third-Party Services to enable You to or assist You in using services provided by third parties. The use of a Third-Party Service may be subject to additional terms and conditions from the provider of such Third-Party Service. Acast makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such Third-Party Service, or any transactions completed, or any contract entered into by You, with any such Third-Party Service provider. Acast recommends that You refer to the Third-Party Service provider's terms and conditions and privacy policy prior to using the relevant Third-Party Service. By using a Third-Party Service available on the Platform, You agree to be bound by and adhere to any additional terms and conditions applicable to such Third-Party Service.
9.2 At any time during the term of your agreement with Acast and in the event that any of your Publications are published to a third-party distribution platform, You acknowledge that such third party distribution platform(s) may require that You agree to separate third party license terms, terms of use agreements and/or privacy policies as a condition of any such distribution/use of the third party service(s). We will not be responsible in any manner whatsoever for any such Third-Party Services.
10. TERM AND TERMINATION
10.1 You may terminate subscription to your Plan(s) via the Platform user interface at any time. If such termination has not been done at the latest three (3) business days before the Renewal Date, subscription to your Plan(s) will automatically renew. For the avoidance of doubt, termination can only be effected at the end of the current Plan and if You choose to terminate before this date, You acknowledge that Acast will not refund any part of the subscription fees You have already paid to Acast.
10.2 You may delete your account in order to terminate your use of the Platform at any time and for any reason. In such case, your rights and obligations under the Terms will also terminate except for any obligations of yours that have arisen as a consequence of your use of the Platform and the Platform Services before the deletion of your account. For the avoidance of doubt, any subscription fees already paid will not be refunded.
10.3 Your non-compliance with the Terms and/or Community Guidelines may result in: (i) the suspension of your access to the Platform and/or the Platform Services; and/or (ii) the permanent removal of your Podcaster Content and/or Podcaster Data from the Platform; and/or (iii) the termination of your account and your right to use the Services. In addition, if Acast determines that You have breached Sections 4.3.B or 4.3.C or the Community Guidelines, 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 Your intent, Acast may suspend monetisation and withhold accrued payments and/or reduce future amounts due to You under Section 7.3. For the avoidance of doubt, if termination is effected for any reason outlined in this Section 10.3, any subscription fees already paid to Acast will not be refunded. By using the Services, You accept that Acast may, at any time and at its own discretion, close the Platform or parts of the Platform and discontinue the Platform Services or parts thereof.
10.4 In the event of termination, Acast agrees to terminate its provision of the Service, and to remove financial and other information Acast has stored about You. Acast also agrees to redirect the users RSS feed(s), if any, to a new URL provided by You, if requested at the time of cancellation, termination or expiration, subject to Section 10.5 below, and provided that the cancellation or termination is not due to a breach of this Agreement (as determined by Acast in its reasonable opinion).
10.5 We have no obligation to retain Podcaster Content or Your data from the Platform at any time after cancellation, termination or expiration of Your agreement with Acast. Notwithstanding the foregoing, You acknowledge and agree that Acast will be entitled to use aggregate, non-identifying data both during and beyond the term of Your agreement with Acast for analytics, as well as to develop, improve and deliver the Platform and the Platform Services.
10.6 Acast is not obligated to ensure the deletion of any Podcaster Content from any servers or systems operated by third party distributors, or to require that any user of the Platform or any third party distributor deletes any Podcaster Content.
10.7 Notwithstanding anything to the contrary in this Section 10, if 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.
10.8 Acast has the right and may decide in its sole discretion not to accept a renewal of any subscription.
11. CHANGES TO THE SERVICES AND/OR THE TERMS
11.1 We reserve the right to modify, correct, develop, improve, or make any other change to, or discontinue (temporarily or permanently), the Platform and/or Platform Services (or any part thereof) without notice, at any time. In the event of a permanent discontinuation of the Platform, we will, unless prohibited by applicable law or stock-exchange rules, inform You hereof no later than thirty (30) days prior to such discontinuation.
11.2 Acast may revise these Terms from time to time at our sole discretion. When there is a new version of the Terms, You will receive notice via email. If you continue to use the Service after receipt of the notice of the new version of the Terms, you will be deemed to have accepted the new version of the Terms. If You do not agree to the new version of the Terms, You may not continue to use the Services and any subscription fees or similar shall not be refunded.
12. REPRESENTATIONS AND WARRANTIES
12.1 For each piece of Podcaster Content You submit, represent and warrant that:
A. You have obtained and shall maintain all licenses, rights, consents and permissions necessary to submit the Podcaster Content to the Platform and to grant Acast the rights and licenses set forth herein for Acast's use of the Podcaster Content as contemplated herein; and
B. any Podcaster Content made available by You on the Platform does not and will not infringe upon any third party's rights, including any Intellectual Property Rights, privacy rights, or any other proprietary rights and will comply with all applicable laws.
12.2 You represent and warrant that any materials uploaded to the Platform, including without limitation, any Podcaster Content:
A. does not contain anything that is defamatory, libellous, abusive, offensive, threatening, pornographic and/or obscene (unless specifically approved by Acast in writing);
B. does not violate any confidentiality obligations You owe to a third party; and
C. complies with all applicable laws.
13. DISCLAIMER
13.1 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE PLATFORM, THE PLATFORM SERVICES AS WELL AS ANY MATERIAL, INFORMATION AND ANY THIRD-PARTY COMPONENTS PROVIDED THEREIN ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND ACAST DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR NON-INFRINGEMENT OR IMPLIED WARRANTIES OF USE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
13.2 WE WILL MAKE REASONABLE EFFORTS TO MAKE SURE THAT THE PLATFORM WILL BE AVAILABLE FOR USE 24 HOURS A DAY AND 365 DAYS A YEAR. HOWEVER, YOU ACKNOWLEDGE AND AGREE THAT FROM TIME TO TIME THE PLATFORM MAY BE INACCESSIBLE, UNAVAILABLE OR INOPERABLE FOR ANY REASON, INCLUDING, WITHOUT LIMITATION: (A) EQUIPMENT MALFUNCTIONS; (B) PERIODIC MAINTENANCE PROCEDURES OR REPAIRS WHICH ACAST MAY UNDERTAKE FROM TIME TO TIME; (C) CAUSES BEYOND THE CONTROL OF ACAST OR (D) CAUSES WHICH ARE NOT REASONABLY FORESEEABLE BY ACAST. ACAST WILL NOT BE LIABLE AND/OR RESPONSIBLE FOR THE PLATFORM'S FAILURE TO BE AVAILABLE FOR ANY REASON WHATSOEVER, INCLUDING BUT NOT LIMITED TO INTERNET AND NETWORK CAUSED OUTAGES, OUTAGES DURING WHICH THE HARDWARE AND SOFTWARE CANNOT BE ACCESSED DUE TO TECHNICAL OR OTHER PROBLEMS THAT ARE NOT UNDER OUR CONTROL SUCH AS FORCE MAJEURE, THIRD PARTY NEGLIGENCE OR UNAVAILABILITY OF THIRD PARTY PLATFORMS REQUIRED BY ACAST TO PROVIDE THE SERVICES.
13.3 ACAST SHALL USE COMMERCIALLY REASONABLE ENDEAVORS TO ENSURE THAT THE USAGE DATA FOR YOUR PUBLICATION(S), INCLUDING BUT NOT LIMITED TO NUMBER OF LISTENS AND DEMOGRAPHIC DATA, WHICH IS PROVIDED TO YOU VIA THE PLATFORM, IS CORRECT. HOWEVER, ACAST MAKES NO GUARANTEE THAT SUCH INSIGHTS DATA IS ERROR-FREE.
13.4 YOU SHOULD ALWAYS PRESERVE BACK-UP COPIES OF ANY PODCAST AUDIO FILES, PUBLICATIONS OR OTHER CONTENT OR DATA THAT YOU UPLOAD TO THE PLATFORM. ACAST IS NOT RESPONSIBLE FOR ANY LOSS OF PODCAST AUDIO FILES, PUBLICATION OR OTHER CONTENT OR DATA UPLOADED BY YOU TO THE PLATFORM.
13.5 TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL ACAST BE LIABLE FOR ANY DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO, DIRECT OR INDIRECT DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE, CONTRACTS, BUSINESS, REPUTATION OR GOODWILL, PROFITS, DATA OR BUSINESS INTERRUPTION) ARISING HEREUNDER, RESULTING FROM OR ARISING OUT OF THE SERVICES, YOUR USE OR INABILITY TO USE THE SERVICES OR FAILURE OF THE PLATFORM AND/OR THE PLATFORM SERVICES. IN NO EVENT SHALL ACAST TOTAL LIABILITY HEREUNDER EXCEED AN AMOUNT CORRESPONDING TO THE SUBSCRIPTION PLAN FEES PAID BY YOU DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM FOR COMPENSATION HEREUNDER.
13.6 YOU ACKNOWLEDGE THAT ACAST IS NOT RESPONSIBLE FOR THE ACCURACY OF THE PODCAST CONTENT THAT IS UPLOADED TO THE PLATFORM AND THAT RELIANCE ON SUCH PODCAST CONTENT IS EXPRESSLY AT YOUR OWN RISK. ACAST ACCEPTS NO LIABILITY FOR DIRECT OR CONSEQUENTIAL LOSS ARISING AS A RESULT OF THE ACCURACY, TIMELINESS, COMPLETENESS OR USEFULNESS OF INFORMATION AVAILABLE ON OR THROUGH THE PLATFORM.
13.7 NEITHER PARTY SHALL BE IN BREACH OF, OR UNDER ANY LIABILITY TO, MAKE PAYMENT TO THE OTHER PARTY UNDER THIS AGREEMENT TO THE EXTENT THAT THE BREACH OR PAYMENT OBLIGATION ARISES AS A RESULT OF ANY BREACH BY THE OTHER PARTY OF ITS OBLIGATIONS UNDER THIS AGREEMENT.
14. INDEMNIFICATION
14.1 YOU WILL INDEMNIFY, DEFEND, AND HOLD HARMLESS ACAST AND OUR AFFILIATES, AND EACH OF OUR RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, AND AGENTS, FROM AND AGAINST ALL THIRD-PARTY ACTIONS, DAMAGES, CLAIMS, LIABILITIES, DAMAGES, LOSSES, AND EXPENSES BROUGHT IN ANY JURISDICTION: (A) THAT ARISE FROM YOUR ACTIVITIES ON THE PLATFORM OR IN THE PLATFORM SERVICES; (B) AGAINST ANY CLAIM THAT ASSERTS OR ALLEGES THAT ANY OF YOUR PODCASTER CONTENT ANY LAW OR INFRINGES UPON ANY THIRD PARTY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHT, INCLUDING ANY COPYRIGHT, TRADEMARK, PATENT, OR PRIVACY RIGHT; OR (C) OTHERWISE ARISING OUT OF ANY BREACH OR ALLEGED BREACH OF ANY OF YOUR REPRESENTATIONS, WARRANTIES OR OBLIGATIONS SET FORTH IN THESE TERMS.
14.2 ACAST SHALL INDEMNIFY AND HOLD YOU HARMLESS FROM, AND WILL DEFEND YOU AGAINST, ANY AND ALL LOSSES, DEMANDS, CLAIMS, DAMAGES, COSTS AND/OR EXPENSES (INCLUDING REASONABLE COSTS) INCURRED BY YOU ARISING OUT OF OR IN CONNECTION WITH ANY THIRD PARTY CLAIMS, ACTIONS OR PROCEEDINGS BROUGHT AGAINST YOU TO THE EXTENT IT IS BASED ON A CLAIM THAT AN AD SOLD BY ACAST AND PLACED IN THE PUBLICATION IS IN BREACH OF ANY APPLICABLE LAW, AND/OR IS AN INFRINGEMENT OF ANY RIGHTS, INCLUDING, WITHOUT LIMITATION ANY INTELLECTUAL PROPERTY RIGHTS, OF ANY THIRD PARTY.
15. CONFIDENTIALITY
15.1 Each Party shall, during the term of this Agreement and thereafter, keep Confidential Information of the other Party confidential and not use such Confidential Information otherwise than for the purpose of the Agreement.
15.2 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.
15.3 The obligations of confidentiality contained in this Section 15 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.
15.4 Each Party may disclose Confidential Information if 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.
15.5 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.
16. MISCELLANEOUS
16.1 Acast may assign, transfer, delegate, sublicense or subcontract these Terms including any of its rights and/or obligations under these Terms to any third party. You may not assign these Terms, in whole or in part, nor transfer or sublicense the rights or obligations under these Terms to any third party.
16.2 If any part, term or provision of the Terms is held to be illegal or unenforceable, the validity of the remainder of the Terms will not be affected. Any omission of Acast to enforce its rights under the Terms shall not be regarded as a waiver of such rights. It is expressly understood that all provisions regarding limitations of liability and indemnities will remain in full force and effect and shall survive the deletion of your account on the Platform.
17. TRADE SANCTIONS ETC.
Each Party agrees to comply with any and all trade, economic or financial sanctions and export control laws, regulations or similar restrictive measures of any country with jurisdiction over the respective Party’s activities (“Sanctions”). Each Party warrants that neither it nor its affiliates, nor their respective directors and officers, is a person or entity on any list related to sanction laws or regulations issued or made public by the UN, EU, U.S. or other countries (a “Sanctioned Party”), nor directly or indirectly owned 50% or more or otherwise controlled by a Sanctioned Party. In performing its obligations and exercising its rights under the Agreement, the Podcaster warrants that it will not, directly or indirectly, engage in any unauthorized business or dealings with any Sanctioned Party or otherwise engage in any activities prohibited by Sanctions. Podcaster acknowledges that the System, Services and/or any other software or tool provided by Acast hereunder may be subject to export controls and, except as required and authorized by law, agrees and warrants that it will not itself, nor will it allow or provide for any person or entity to in any way access, use, export, re-export or transfer the System, Services and/or any other software or tool hereunder in/to a Sanctioned Party, any comprehensively sanctioned or embargoed country or region, or otherwise in violation of Sanctions.
18. GOVERNING LAW AND DISPUTES
18.1 Any claim relating to the Platform or the use thereof will be governed by and interpreted in accordance with the laws of Sweden, without reference to its conflict of law principles.
18.2 Any dispute, controversy or claim arising out of or in connection with this Agreement, or the breach, termination or invalidity thereof, shall be finally settled by the Court of Stockholm, Sweden, unless otherwise required under local consumer legislation. The language to be used in any proceedings shall be English.
19. CONTACT INFORMATION
If You have any questions, complaints or comments about Acast or our services then please contact us by email using support@acast.com, or in writing by post to Acast AB (publ), corporate reg. no. 556946-8498, Kungsgatan 28, 111 35 Stockholm, Sweden.