Creator Labs Agreement
The following sets forth the agreement (this “Agreement”) between Pandora Media, LLC (“Pandora”) and you (“Creator”) with respect to the Pandora Creator Labs program (the “Program”). This Agreement and any other documents incorporated herein, including the Pandora Privacy Policy, the Pandora Services Terms of Use, and the Pandora Artist Marketing Platform Terms of Use, shall govern Creator’s participation in the Program.
For good and valuable consideration, the adequacy and receipt of which the parties hereby acknowledge, Pandora and Creator hereby agree as follows:
1. Definitions. Capitalized terms used in this Agreement shall have the meanings set forth below. Terms used but not defined in this Agreement shall have the meanings set forth in the Pandora Privacy Policy, the Pandora Services Terms of Use and/or the Pandora Artist Marketing Platform Terms of Use, as applicable.
“Audio Drops” means non-musical, voice-over interstitials of Creator, including, but not limited to, welcome messages, personal anecdotes and/or commentary on musical tracks.
“Creator ID Materials” means Creator’s name, voice, image, likeness and biographical materials and any any additional materials provided by Creator to Pandora, including, without limitation, social media handles and/or website links.
“Creator Station” means a DMCA compliant [non-interactive] playlist containing: (i) between eighty (80) and one hundred and twenty (120) musical tracks selected and/or curated by Creator from Pandora’s available musical tracks library and (ii) at least fifteen (15) Audio Drops.
“Creator Tool” means the self-service portal located at http://www.AMP.pandora.com through which Creators can: (i) select musical tracks from the Pandora library for curation of Creator Stations; and (ii) record Audio Drops for such Creator Stations on the Pandora Service.
“DMCA” means the Digital Millennium Copyright Act, as amended.
“FTC Guides” means the Federal Trade Commission’s Guides Concerning the Use of
Endorsements and Testimonials in Advertising.
“Pandora Service” means all tiers, features, and functionalities of the “Pandora” branded services owned, controlled and/or operated by Pandora and available through all devices now existing or hereafter developed including, computers, mobile phones, tablets/hand-held devices, connected televisions and consumer electronic devices.
“Territory” means the United States of America and its territories and possessions.
“Term” the term of this Agreement shall commence on the Effective Date and continue for six (6) months, unless terminated in accordance with this Agreement.
2. Program. The Pandora Creator Labs program provides an opportunity for creators to create andcurateCreatorStationsonthePandoraService. CreatorshallcreateandsubmitforPandora’s review the Creator Station and registration form using the Creator Tool. Pandora shall have the right to accept or reject the Creator Station (and/or any content contained in the Creator Station (including the Audio Drops) for inclusion in the Program. Pandora shall have the right to withdraw any Creator Station (or content contained within the Creator Station) from the Pandora Service at any time with no liability to Creator.
3. Creator Deliverables.
(a) Creator Tool. Creator shall update the Creator Station at least one time per week during the Term by replacing fifteen (15) to twenty (20) musical tracks contained in the Creator Station with replacement musical tracks from the Pandora library.
(b) Creator shall perform, record and deliver the Audio Drops via the Creator Tool for inclusion in the Creator Station on the Pandora Service. Creator shall provide at least fifteen (15) Audio Drops for inclusion in the Creator Station at the initial launch of the Creator Station. Creators shall update the Creator Station at least one time per week to include between five (5) and ten (10) new Audio Drops.
4.. Services. Creator’s services hereunder shall be non-exclusive to Pandora; provided, however, Creator may not replicate or copy the Creator Branded Station on any other platform. Creator shall comply with all applicable laws, rules and regulations, as well as any policies and procedures of Pandora that may be applicable to Creator participating in the Program. In addition, Creator shall produce and deliver the Creator Content Deliverables (as defined below) in a professional, diligent and workmanlike manner and, in all material respects, in accordance with all generally accepted professional industry standards and practices. Unless otherwise provided and approved by Pandora in writing in advance, Creator shall be solely responsible for any equipment, transportation, and/or expenses required or utilized in connection with the Creator Content Deliverables. Pandora assumes no responsibility for loss and/or damage of rental or any other equipment belonging to or used by Creator.
5. Creator Obligations.
a. With respect to Creator’s participation in the Program: (i) Creator shall comply in all respects with Pandora’s Community & Content Policy located at https://www.pandora.com/legal/community-content-policy/, (ii) excluding editorial commentary on songs and editorial content included in the Creator Branded Stations, Creator’s Audio Drops shall be (a) free from third party content and third party intellectual property (including copyrights, trademarks, name & likeness); (b) free from third party product mentions and/or endorsements; and (c) primarily spoken word (i.e., no music beds, no acapella, no acoustic renditions of compositions except with Pandora’s prior written approval); and (iii) Creator’s voice over content will not disparage or denigrate Pandora and/or any third party including any third party musical artist. Further, with respect to Creator’s
Creator shall provide the following content deliverables (the
“Creator Content Deliverables”) to Pandora:
Creator shall create and curate the Creator Station using the
participation in the Program, Creator shall comply at all times with: (a) all applicable federal, state and local laws, rules and regulations, including those concerning disclosures and endorsements, including, but not limited to, the Federal Trade Commission’s Guides Concerning the Use of Endorsements and Testimonials in Advertising (“FTC Guides”), with such FTC Guides available at (collectively, “Applicable Law”); (b) other policies, guidelines and procedures that may be supplied by Pandora to Creator from time to time; and (c) if applicable, any and all third party platform terms and conditions (e.g., Facebook, Twitter, Instagram, Snapchat, etc.).
b. Notwithstanding Section 5(a)(ii) above, to the extent Creator references any third party or third party content in or as part of the Creator Branded Station (solely as approved by Pandora in an advance writing), Creator shall obtain any and all third party rights necessary to use, name or reference such third party content in the Creator Branded Station including without limitation for the marketing and promotion of the Creator Branded Station. Creator shall provide Pandora with proof of such permissions upon Pandora’s request. By way of example only, if Creator works for a third party organization and wishes to name such organization as part of their Creator Branded Station, Creator must obtain the right to use such third party organization name.
6. License Grant. Creator hereby grants Pandora all necessary rights and licenses to record, capture, use, display, produce, distribute, promote, license, modify, create derivative works from, sublicense and otherwise exploit Creator’s physical likeness and voice, and to use and exploit Creator’s name, image/physical likeness, voice, and any materials or information provided by Creator including without limitation the Creator Identification (as defined below) in connection with the Project, the Creator Branded Station and the marketing/promotion of each of the foregoing.
7. Creator Promotional and Social Media. Creator hereby grants Pandora the right to use the Creator’s name, voice, image and likeness, as well as any ancillary materials provided by Creator such as biographical information, social media handles or website links (collectively, the “Creator Identification”), the voice over Station Content, Audio Drops, and any materials furnished by Creator to Pandora, on each of its owned and operated sites, apps and social media channels, solely in promotion of the Program. Creator shall have the right to make social media posts from the Creator’s social media accounts driving to the Program and linking to the Program (each, a “Creator Post”). If Creator publishes any Creator Posts, Creator agrees to include hashtags provided by Pandora where and as applicable and as applicable, agrees to include any disclosures required by Applicable Law, including, but not limited to, as required by the FTC Guides. During the Term, the Creator shall not post any material that disparages, reflects in a negative light, or otherwise discourages any of the products or any of the attributes of Pandora or Pandora’s products, services, employees, contractors or officers. Creator shall delete or otherwise remove any such Creator Post promptly following Pandora’s request.
8. Fee; Taxes. In full consideration of the rights granted and services provided herein, and conditioned upon Creator providing Pandora with all required tax forms and payment information, Pandora shall pay Creator the fee mutually agreed to by the parties (the “Fee”) and
set forth in Creator’s Creator Labs account. The Fee shall be paid following Creator’s submission and Pandora’s approval of the Creator Content Deliverables and Updates thereo. All costs and expenses in connection with Creator’s provision of services, including any expenses incurred by Creator, shall be paid by Creator, unless otherwise approved in advance by Pandora in writing. All taxes imposed as a result of the performance of a Party’s obligations hereunder shall be paid by the Party required to do so by applicable law. In the event that Pandora is required by applicable law to withhold taxes for any payment under this Agreement by virtue of any statutes, laws, codes or governmental regulations, then the payment of such withholding taxes shall be made by Pandora, unless Company provides a certificate of exemption from such withholding taxes. Each Party shall provide all documentation as may reasonably be requested by the other Party to fulfill its tax obligations in connection with this Agreement.
Work Made for Hire.
Except for the Creator Posts, all work, services, Creator Content Deliverables
including Station Content, voice overs, Audio Drops, compilation of audio tracks and other materials and deliverables provided, performed or created by Creator under this Agreement (collectively, the “Works”) are the property of Pandora and all title and interest therein shall vest in Pandora in perpetuity throughout the universe and shall be deemed to be a work made for hire and made in the course of Creator’s participation in the Program.
To the extent that title to any Works may not, by operation of law, vest in Pandora or such Works may not be considered works made for hire, Creator hereby irrevocably assigns to Pandora all right, title and interest in and to any Works. All Works shall belong exclusively to Pandora, and Pandora shall have the right to obtain and to hold in its own name, copyrights, registrations, patents, or such other protection as may be appropriate to the subject matter, and any extensions and renewals thereof. Creator agrees to give Pandora and any person designated by Pandora such reasonable assistance, at Pandora’s request and expense, as is required to perfect, secure and protect Pandora’s intellectual property and other rights set forth in this section, including executing all documents necessary to perfect, secure and protect such rights.
Unless otherwise requested by Pandora, upon the termination of this Agreement, Creator shall immediately turn over to Pandora all Works developed pursuant to this Agreement.
Union. Creator acknowledges and agrees that Pandora is not a signatory to collective
bargaining agreements with Screen Actors Guild-American Federation of Television and Radio Artists, the American Federation of Musicians, and/or other union or guild relating to the production of commercials (each, a “CBA”). The Works will not be produced pursuant to any CBA, and, accordingly, Creator agrees to perform services on a non-union basis.
11. License of Other Rights. If Creator has any rights to the Works that cannot be assigned to Pandora, Creator unconditionally and irrevocably grants to Pandora during the term of such rights, an irrevocable, perpetual, worldwide, fully paid and royalty-free license, with rights to sublicense, under and to all of such rights to all Works.
12. Representations and Warranties.
a. The parties to this agreement warrant and represent that (i) each has the full and sufficient legal right, power and authority to enter into and perform this Agreement, and that there is and will be no outstanding contract, commitment, arrangement or legal impediment of any kind which is in conflict with this Agreement or which might in any way limit, restrict or impair its ability to perform or fulfill its rights and obligations under this Agreement and (ii) each will perform its obligations hereunder in accordance with all Applicable Laws.
b. Creator warrants and represents that (a) Creator is over the age of 18; (b) Creator is a citizen or legal resident of the United Stations; and (c) no exploitation of the Works or other materials furnished and/or used by Creator hereunder, including Audio Drops provided by Creator, as used in accordance with the terms of this Agreement shall infringe in any way upon the rights of any third party. Creator further represents and warrants that Creator will comply with all Applicable Laws, including without limitation with respect to endorsements and disclosures as set forth in the FTC Guides, regarding ,in the performance of this Agreement.
c. Creator warrants and represents that no fees of any kind shall be payable by Pandora to any third party rendering services to Creator in connection with this Agreement, including but not limited to any manager or booking agent or pursuant to any CBA, and Creator shall be responsible for any such sums as may be payable and any associated liability in respect thereof. Creator acknowledges that its sole remedy for any breach by Pandora hereof shall be limited to an action for money damages, and Creator irrevocably waives all equitable, injunctive, and other remedies.
13. Indemnification. Creator shall indemnify and hold Pandora and its parent subsidiaries, affiliates, and each of their representatives, agents, beneficiaries and assigns harmless from any third party claim arising from any breach, or alleged breach, of any representations, warranties and or obligations made by Creator hereunder, including any and all legal fees and costs as may be incurred by Pandora in connection therewith.
14.
LIMITATION OF LIABILITY:
IN NO EVENT WILL PANDORA BE LIABLE FOR (i) ANY DIRECT DAMAGES IN EXCESS OF THE AMOUNT PAID BY PANDORA UNDER THIS AGREEMENT, OR (ii) ANY SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH THIS AGREEMENT, EVEN IF PANDORA HAS BEEN INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. ANY AND ALL CLAIMS, JUDGEMENTS AND AWARDS ON BEHALF OF CREATOR SHALL BE LIMITED TO ACTUAL THIRD- PARTY, OUT-OF-POCKET COSTS INCURRED.
a.
DISCLAIMER OF WARRANTIES. CREATOR EXPRESSLY
15.
UNDERSTANDS AND AGREES THAT:
a) CREATOR’S USE OF THE PANDORA SERVICE AND PARTICIPATION IN THE PROGRAM IS AT CREATOR’S SOLE RISK. ANY CONTENT OR INFORMATION CONTAINED WITHIN THE PROGRAM OR PANDORA
SERVICE IS PROVIDED “AS IS” WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND.
TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, PANDORA DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING (BUT NOT LIMITED TO) THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
ANY AND ALL DISPUTES, CLAIMS AND CAUSES OF ACTION ARISING OUT OF OR CONNECTED WITH THIS AGREEMENT WILL BE RESOLVED INDIVIDUALLY, WITHOUT RESORT TO ANY FORM OF CLASS ACTION;
16.
Information" shall include any Pandora non-public or proprietary information and materials made available to Creator hereunder, including, without limitation, the existence of this Agreement, the terms of this Agreement, any information related to Pandora's clients, advertisers, and partners; and any information learned or obtained by Creator in connection with Creator’s participation in the Program. Creator must not use such Confidential Information except as set forth in this Agreement. Creator shall not disclose Confidential Information to anyone except to the extent necessary to comply with law or the valid order of a court of competent jurisdiction, in which event Creator shall provide Pandora with written notice prior to such disclosure and shall seek confidential treatment of such information. Creator must promptly notify Pandora of any actual or suspected misuse or unauthorized disclosure of Confidential Information. Notwithstanding the foregoing, Creator will not be required to keep confidential any part of the Confidential Information which (i) is or becomes generally available or known to the public through no wrongful act of Creator; (ii) was previously known by Creator; (iii) was independently developed by Creator without reference to the Confidential Information; or (iv) was lawfully disclosed to Creator by a third party under no obligation of confidentiality to Pandora. For the avoidance of doubt, Creator will not, without the prior written approval of Pandora, make any announcements or press releases regarding the existence of this Agreement.
17. Termination. Pandora may, in its sole discretion and without notice, terminate Creator’s participation in the Program for any reason, at any time, including, without limitation, if Pandora believes that Creator has:
Breached this Agreement or otherwise acted inappropriately;
Infringed the intellectual property right of a third party;
Provided any information that Pandora is unable to verify or authenticate;
Uploaded or transmitted unauthorized Station Content to the Service; and/or
In the event Creator is charged with, indicted, or convicted of any felony or misdemeanor involving moral turpitude or other serious crime that results, in
b)
Confidential Information; Non-Disclosure. For the purposes hereof, "Confidential
Pandora’s opinion, in a diminution in the value of the Program, Pandora, Sirius XM, or any of their reputations, the Pandora Service or the Sirius XM Service; or (ii) commit(s) an act that has, in Pandora’s opinion, a negative impact on Pandora’s or its affiliates’ image, reputation, or brand, then Pandora shall have the right to remove the applicable Station Content or terminate Creator’s participation in the Program at any time.
18. Miscellaneous.
a. All notices and other communications hereunder shall be in writing and, except as otherwise expressly set forth in this Agreement, shall be deemed given when delivered via the e-mail. Notices to Creator shall be sent to the e-mail address use when registering for the Program. Notices to Pandora shall be sent to Pandora Media, LLC, 2100 Franklin Street, 7th Floor, Oakland, CA 94612, Attention: General Counsel and via email to legal@pandora.com.
b. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, regardless of principles of conflicts of laws that may require the application of the laws of another jurisdiction. Any action or litigation concerning this Agreement shall take place exclusively in the federal or state courts sitting in New York, New York, and the parties expressly consent to the jurisdiction of and venue in such courts and waive all defenses of lack of jurisdiction and inconvenient forum with respect to such courts. The parties agree to service of process by mail or other method acceptable under the laws of the State of New Y ork.
c. Creator agrees that regardless of any statute or law to the contrary, any claim or cause of action, arising out of or related to, this Program, use of the Service or this Agreement must be filed in an applicable jurisdiction within one (1) year after such claim or cause of action arose or be forever barred.
d. Each of the parties is an independent contractor of the other during the Term. Neither party is a partner, franchisee, franchisor, joint venture, employer or employee of the other party for any purpose whatsoever. In connection therewith, Creator represents and warrants that Creator is solely and exclusively responsible for paying all federal, state and/or local taxes and withholdings with respect to any payment hereunder. In addition, Creator acknowledges, represents and warrants that Creator will (i) comply with any other applicable statutory or contractual obligations, including workers’ compensation insurance, health insurance, and unemployment insurance; and (ii) not be eligible for Pandora’s employee benefits, including vacation or holiday pay, sick leave, health insurance, retirement benefits, unemployment insurance benefits, separation payments or other employee benefits of any kind.
e. Pandora is under no obligation to provide technical support to Creator and provides no assurance that any specific errors or discrepancies in the Program and/or the Service will be corrected. Pandora reserves the exclusive right to modify, withdraw, suspend or discontinue, temporarily or permanently, at any time and from time to time any materials, information or content available in the Program and/or on the Service and any functionality or features in the Program and/or on the Service, including the cessation of all activities associated with the Program or the Service, with or without notice, liability or obligation to Creator. Creator agrees that Pandora shall not be liable to Creator or to any third party for any modification, suspension or discontinuance of the Program and/or the Service.
f. Entire Agreement. This Agreement (together with any other terms referenced herein) sets forth the entire agreement and understanding of the parties relating to the subject matter hereof, and supersedes all prior and contemporaneous agreements, arrangements and understandings relating to the subject matter hereof,
g. Survival. All provisions of this Agreement which must survive in order to give effect to their meaning (including, without limitation, the representations, warranties, indemnities and confidentiality obligations) shall survive any expiration or earlier termination of these Agreement.
h. Captions and Headings. The captions and headings of the sections of this Agreement are for convenience only, and shall not in any way affect the interpretation of any section of this Agreement or the Agreement itself.
Pandora reserves the right to change or modify this Agreement at any time. This Agreement shall not be modified except in writing, as posted on the Service by Pandora. Any change or modification made by Pandora will be effective immediately upon posting on the Service and Creator expressly agrees to the latest version of these terms of Use by continuing to participate in the Program.