Podsights Terms of Service
Last updated August 5, 2022
These Terms of Service ("Terms") are entered into between the person, organization, or entity accepting these Terms ("Customer" or “you”) and In Defense of Growth Incorporated (d/b/a “Podsights”), owned by Spotify USA Inc., entering into the applicable Order Schedule (each, an "OS") for Podsights analytics services (“Podsights Services”). These Terms, together with any applicable terms and conditions set forth in the relevant OS, shall be considered the "Agreement." Some Podsights Services may be provided by other related parties, entities and affiliates of Spotify USA Inc.
By accessing the Podsights Services, you agree to be bound by these Terms, and agree that you are responsible for compliance with all applicable laws and regulations. If you do not agree with these Terms, you may not use or access the Podsights Services. If you are using the Services on behalf of a company, entity or organization, you represent and warrant that you are an authorized representative of such company, entity or organization with the authority to bind it to these Terms.
“Analytics Prefix” means the redirect service or log transfer that allows Podsights to collect data from End User on behalf of Customer to provide Podsights Services.
“Analytics Data” means any data collected from Customer’s site visitors (Pixel Data) or Customer’s listeners (Download Data), as applicable.
“Content Distribution Channels” means any website, RSS feed consumer, media player, app, or any means for distributing or consuming Customer’s content.
“Documentation” means instructions and manuals pertaining to the Podsights Services in electronic or printed form.
“Download Data” means audio ad impressions collected from Customer’s listeners.
“End User” means any person or entity consuming content from Customer via Podsights (e.g.: individuals who listen to Customer’s podcasts).
“Hosted Service” means the Analytics Prefix and pixel integration which are hosted by Podsights and provided to Customer. The Hosted Service includes any change, improvement, extension or other new version thereof that is developed or otherwise made available to Customer.
“Pixel Data” means brand side data collected from Customer’s site visitors, including but not limited to: IP address, user agent, timestamp, page views or other SDK events.
“Platform” means all ideas, concepts, inventions, systems, platforms, software, interfaces, tools, utilities, templates, forms, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies, implementations and information that are used by Podsights in providing the Podsights Services.
2. Agencies and Other Representatives
2.1 If the party accepting these Terms is an agency or other entity representing or acting on behalf of a Customer, it agrees that (a) it is an authorized representative of Customer and it is authorized to enter into this Agreement and bind the Customer to all commitments in this Agreement; and (b) it shall be liable for Customer's responsibilities and obligations under this Agreement.
3. Podsights Services
3.1 Order Schedules. In order to access and use the Podsights Services you must register for an account with Podsights at https://dash.podsights.com/signup. By using these Podsights Services, you agree to pay for impressions run at either the current list price, or pursuant to a mutually executed Order Schedule, the latter of which shall control.
3.2 License to Access Analytics Prefix. Podsights hereby grants Customer a nonexclusive license to access and use the Analytics Prefix solely in connection with its use of the Podsights Services.
3.3 Support. Podsights will use commercially reasonable efforts to provide Customer with technical support for the Hosted Service in accordance with its standard practices, as amended from time to time. Customer agrees that Podsights shall have the right to charge in accordance with its then current policies for any support service resulting from problems, errors or inquiries not arising from the Podsights Services.
4. Data Ownership and Protection
4.1 Data Owner ship. Customer shall own all rights to any Analytics Data collected from Customer’s End Users subject to a non-exclusive, worldwide, fully-paid, royalty-free license to Podsights to use Analytics Data (a) in connection with providing the Podsights Services, including without limitation the right to use, copy, store, transmit, modify, display Analytics Data, and create derivative works of any such Analytics Data (“Attribution Services”), (b) on an aggregated basis, publishing and distributing such aggregated data (“Industry Reporting”), and (c) on an aggregated basis, to provide advisory recommendations and enriched audience data (“Advisory Services”). The Analytics Data shall be processed subject to the Podsights Data Protection Agreement, incorporated by reference: https://podsights.com/dpa/.
4.2 Data Protection Compliance. All parties agree that they shall, in relation to personal data processed in connection with this Agreement, process all such personal data in accordance with all relevant and applicable data protection legislation. Further, to the extent of any personal information provided by Customer to Podsights, Podsights shall not: (a) sell the personal information; (b) retain, use, or disclose the personal information for any purpose other than as set forth in the Agreement; (c) retain, use, or disclose the personal information outside of the direct business relationship between Podsights and Customer in a non-aggregated, non-anonymized form. Parties agree that any provision of personal information by Customer is necessary to perform a business purpose and Podsights is acting as a service provider under CCPA. Podsights certifies these restrictions and incorporates them by reference: https://podsights.com/ccpa/.
4.3 Data Subprocessors. Podsights has entered contracts with the subcontractors listed in the Data Protection Agreement (“Segment Provider(s)”). Podsights has authorized the Segment Providers to act as its subcontractor in connection with performing certain attribution services. Podsights has agreed to transfer to Segment Providers certain information of Customer’s End Users, specifically and solely: household IP addresses as provided by Customer to Podsights in connection with Podsights Services (the “Provided Data”). Segment Providers have agreed to collect and process the Provided Data for the purpose of determining whether such data can be matched with a Segment Provider’s proprietary audience segment data (“SP Proprietary Data”). If a match is successful, Segment Provider then returns its corresponding SP Proprietary Data, i.e., segment codes attached to each record, to Podsights, which data Podsights may share in aggregated form. Customer (i) agrees that Podsights may provide the Provided Data to Segment Providers for this use; and (ii) authorizes Podsights to engage the Segment Providers for the limited purpose of processing such Provided Data. Podsights represents that it has contractually required all Segment Providers to: (i) process any Provided Data pursuant to the same or substantially similar terms as required for Podsights’ own treatment of data contractually, and (ii) be a “service provider” (as defined under CCPA) to both Podsights and Customer.
5. Limitations on Podsights Services
5.1 Limitations. Podsights shall not be responsible or liable for any failure in the Podsights Services resulting from or attributable to (a) usage in excess of the usage for which Customer has ordered pursuant to an applicable Order Schedule, (b) failures in any telecommunications, network or other service or equipment outside of Podsights’ facilities, (c) Customer’s or any third party’s products, services, negligence, acts or omissions, (d) any force majeure or cause beyond Podsights’ reasonable control, (e) scheduled maintenance or (f) unauthorized access, breach of firewalls or other hacking by third parties.
5.3 No Other License. Except for the limited rights and licenses expressly granted hereunder, no other license is granted to the Podsights Services and/or the results and products thereof, no other use is permitted and Podsights (and its licensors) shall retain all rights, title and interests (including all intellectual property and proprietary rights) in and to the Podsights Services.
5.4 Restrictions. Except as expressly permitted in this Agreement, Customer shall not directly or indirectly (a) use any of Podsights’ Confidential Information (defined below) to create any service, software, documentation or data that is similar to any aspect of the Podsights Services, (b) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code of the Platform, or the underlying ideas, algorithms or trade secrets therein, (c) encumber, sublicense, transfer, rent, lease, time-share or use the Podsights Services in any service bureau arrangement or otherwise for the benefit of any third party, (d) copy, distribute, manufacture, adapt, create derivative works of, translate, localize, port or otherwise modify any aspect of the Podsights Services, (e) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction or (f) permit any third party to engage in any of the foregoing proscribed acts.
6.1 Confidentiality. Each party agrees that the proprietary, business, technical and financial information, that is designated in writing as confidential, or that a reasonable person would understand the confidentiality of the information disclosed, shall be the confidential property of the disclosing party and its licensors (“Confidential Information”). Confidential Information does not include information that (a) is previously rightfully known to the receiving party without restriction on disclosure, (b) is or becomes known to the general public, through no act or omission on the part of the receiving party, (c) is disclosed to the receiving party by a third party without breach of any separate nondisclosure obligation, or (d) is independently developed by the receiving party. Except as expressly allowed herein, the receiving party shall hold in confidence and not use or disclose any Confidential Information received from the disclosing party and shall similarly bind its employees, consultants, and independent contractors. Upon the expiration or termination of this Agreement, the receiving party shall make no further use of such materials. If required by law, the receiving party may disclose Confidential Information of the disclosing party, but will give adequate prior notice of such disclosure to the disclosing party to permit the disclosing party to intervene and to request protective orders or confidential treatment thereof.
7.1 Fees. Customer asserts that all of the information provided on the Podsights dashboard is true and correct and that Customer shall maintain its accuracy throughout the term of this Agreement. Customer agrees that responsibility for the payment of all fees and expenses shall be with the "payee" as designated by Customer within the Podsights dashboard, however, Customer shall be ultimately responsible to pay Podsights all fees and expenses in the amounts and at the times specified in the applicable Order Schedule(s) or as otherwise provided in these Terms or at https://podsights.com/pricing/.
7.2 Payment Terms. Unless specified otherwise, all amounts due hereunder shall be paid in full (without deduction, set-off or counterclaim) within 30 days after invoice in US dollars to the Podsights address or to an account specified by Podsights in the invoice. All fees must be disputed within 30 days of invoice, or they shall be considered accepted by Customer. 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 less. All fees are non-refundable and due in full upon termination of this Agreement.
7.3 Taxes. All payments required by this Agreement are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes value added taxes, and any other indirect taxes), and Customer agrees to bear and be responsible for the payment of all such charges, excluding taxes based upon Podsights’ net income. If Customer withholds on payments to Podsights, Customer shall not be entitled to a deduction on payment to Podsights and shall gross up their payment to Podsights to ensure Podsights receives 100% of the agreed upon fee. 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.
8. Representations and Warranties
Each party represents and warrants that: (a) it is a duly organized and validly existing under the laws of the jurisdiction in which it is organized; (b) it has full power and authority, and has obtained all approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder; (c) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (d) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, law, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
9. Limitation of Liability
Except for any breach of section 5 (confidentiality), in no event shall either party be liable concerning the subject matter of this Agreement, regardless of the form of any claim or action (whether in contract, negligence, strict liability or otherwise), for any (a) matter beyond its reasonable control, (b) loss or inaccuracy of data, loss or interruption of use, or cost of procuring substitute technology, goods or services, (c) indirect, punitive, incidental, reliance, special, exemplary or consequential damages including, but not limited to, loss of business, revenues, profits and goodwill or (d) damages, in the aggregate, in excess of the amounts paid to it (in the case of Podsights) or paid and payable by it (in the case of Customer) hereunder during the previous 12 months, even if it has been advised of the possibility of such damages. These limitations are independent from all other provisions of this Agreement and shall apply notwithstanding the failure of any remedy provided herein.
Except as specifically provided herein, the Podsights Services are provided “as is” without warranty of any kind. Podsights does not warrant that the Podsights Services will meet Customer’s requirements or result in any outcome, or that their operation will be uninterrupted or error-free. To the fullest extent permitted by law, Podsights hereby disclaims (for itself and its suppliers) all other warranties, whether express or implied, oral or written, with respect to the Podsights Services including, without limitation, all implied warranties of title, non-infringement, quiet enjoyment, integration, merchantability or fitness for any particular purpose and all warranties arising from any course of dealing, course of performance or usage of trade.
11.1 Indemnification. Podsights shall defend, indemnify and hold Customer harmless against any and all third-party claims, actions, damages, costs and expenses arising out of Podsights’ actual infringement of the patent, trademark, copyright, or any other intellectual property rights of a third party. If any Hosted Service becomes or, in Podsights’ opinion, is likely to become the subject of any injunction preventing its use as contemplated herein, Podsights may, at its option (i) obtain for Customer the right to continue using the Hosted Service or (ii) replace or modify the Hosted Service so that it becomes non-infringing, without substantially compromising its principal functions. If (i) and (ii) are not reasonably available to Podsights, then Podsights may (iii) terminate this Agreement upon written notice to Customer and refund to Customer any Hosted Service fees that were pre-paid for the then current term, prorated for the remainder thereof.
11.2 Exclusions. Podsights shall have no liability or obligation hereunder with respect to any claim based upon (a) use of any Hosted Service in an application or environment or on a platform or with devices for which it was not designed or contemplated or which otherwise violates this Agreement, (b) modifications, alterations, combinations or enhancements of the Hosted Service not created by Podsights, (c) the Customer website or any Customer content, (d) any portion of the Hosted Service that implements Customer’s requirements that are not available to Podsights’ other customers, (e) Customer’s continuing allegedly infringing activity after being notified thereof and its continuing use of any version after being provided modifications that would have avoided the alleged infringement or (f) any intellectual property right in which Customer or any of its affiliates has an interest.
11.3 Procedures. Any claim for indemnification hereunder requires that (a) Customer provides prompt written notice of the claim and reasonable cooperation, information, and assistance in connection therewith, and (b) Podsights shall have sole control and authority to defend, settle or compromise such claim. Podsights shall not make any settlement that requires a materially adverse act or admission by Customer without Customer’s written consent (such consent not to be unreasonably delayed, conditioned or withheld). Podsights shall not be liable for any settlement made without its prior written consent.
12. Term and Termination
12.1 Term. This Agreement shall commence on the earlier of the date on which you accept these Terms, register for an account, sign an Order Schedule or otherwise access or use the Podsights Services, and shall continue until terminated in accordance with this Agreement, until Customer is no longer using the Podsights Services or through the end date of any relevant Order Schedule, whichever is later.
12.2 Termination for Cause. Either party may terminate this Agreement due to the other party’s material breach; provided that the breaching party is given ten (10) business days to cure the breach after it has been communicated by the non-breaching party in writing.
12.3 Effects of Termination. Upon any expiration or termination of this Agreement, all corresponding rights, obligations and licenses of the parties shall cease, except that all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) shall survive.
13.1 Amendments and Waivers. No amendment, modification, change, consent or waiver shall be effective unless in writing and signed by the party against which enforcement is sought. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights.
13.2 Severability. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
13.3 Governing Law and Venue. 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.
13.4 Dispute resolution and arbitration. Customer and Podsights agree that any dispute, claim, or controversy between Customer and Podsights arising in connection with or relating in any way to the Agreement or to Customer's relationship with Podsights (whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and whether the claims arise during or after the termination of the Agreement) will be determined by mandatory binding individual (not class) arbitration. Customer and Podsights further agree that the arbitrator shall have the exclusive power to rule on the arbitrator's own jurisdiction pursuant to the Agreement, including any objections with respect to the existence, scope or validity of the arbitration agreement or to the arbitrability of any claim or counterclaim. Arbitration is more informal than a lawsuit in court. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. There may be more limited discovery than in court. The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorney fees), except that the arbitrator may not award any relief, including declaratory or injunctive relief, benefiting anyone but the parties to the arbitration. This arbitration provision shall survive termination of the Agreement.
13.5 Remedies. Except as specifically provided otherwise herein, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. If found necessary by the Courts, the non-breaching party may be entitled to injunctive and other equitable remedies to prevent or restrain breach or threatened breach, without the necessity of posting any bond.
13.6 Notices. All notices under this Agreement shall be in writing, in English and delivered to the parties at their respective addresses stated herein. Any legal notices for Podsights should also be sent to the Legal Department at firstname.lastname@example.org. Notices will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile; the day after being sent, if sent for next day delivery by recognized overnight delivery service; or upon receipt, if sent by certified or registered mail, return receipt requested.
13.7 Force Majeure. Neither party shall be liable for any failure or delay in the performance of its obligations hereunder when such is caused by forces beyond its control, including, but not limited to: strikes, work stoppages, acts of war or terrorism, civil or military disturbances, global pandemics, nuclear or natural catastrophes (such as floods, hurricanes, earthquakes, etc.), or other acts of God.
13.8 Publicity. Customer hereby consents to the inclusion of its name and logo (as provided by Customer to Podsights) as part of Podsights’ marketing and promotional efforts by using the Podsights Services.
13.9 Assignment. This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by either party without the other party’s written consent, which is not to be unreasonably withheld. However, either party may assign this Agreement to any successor to all or substantially all of its business which concerns this Agreement (whether by sale of assets or equity, merger, consolidation or otherwise), without consent. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto.
13.10 Independent Contractors. The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.
13.11 Costs and further actions. Each party must pay its own costs with respect to this Agreement and the documents and transactions contemplated under it.
13.12 Modifications. Podsights reserves the right to modify or otherwise change this Agreement 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 Customer and Podsights arising prior to the date on which Podsights posted the revised Agreement incorporating such changes, or otherwise notified Customer of such changes. Unless indicated otherwise in our notice, the updated Agreement will be effective immediately, and Customer’s continued access to or use of our Services after Podsights posts the updated Agreement or provide other notice of such updated Agreement will confirm acceptance of the changes. If Customer does not agree to the updated Agreement, Customer must stop accessing and using the Podsights Services. Podights also reserves the right to modify or discontinue, temporarily or permanently, or suspend the Services (or any part thereof) with or without notice. Podsights may also impose limits on certain features and services or restrict Customer’s access to parts or all of the Services without notice or liability. Customer agrees that Podsights will not be liable to Customer or to any third party for any modification, suspension or discontinuance of Podsights Services.