Spotify Plugins for Backstage
EARLY ADOPTER PROGRAM LICENSE TERMS
Please read these Spotify Plugins for Backstage Early Adopter Program License Terms (the “License Terms”) carefully as they govern your early access to, and use, testing and evaluation of, the pre-release version(s) of Spotify's proprietary plugins for Backstage (collectively, the “EAP Software”). These License Terms together with all order forms incorporating these License Terms collectively form the “Agreement”.
The Agreement is between you and (a) if you are an entity organized under or otherwise subject to the laws of the United States of America: Spotify USA, Inc., a Delaware Corporation with offices at 4 World Trade Center, 150 Greenwich Street, 62nd Floor, New York, New York 10007; or (b) if you are an entity organized under or otherwise subject to the laws of any country outside of the United States of America: Spotify AB, Regeringsgatan 19, 111 53 Stockholm, Sweden, with registered number 556703-7458 (“Spotify”, “we”, “us” or “our”).
IF YOU ARE AN INDIVIDUAL ACCESSING OR USING THE EAP SOFTWARE ON BEHALF OF, OR FOR THE BENEFIT OF, ANY CORPORATION, PARTNERSHIP, OR OTHER ENTITY WITH WHICH YOU ARE ASSOCIATED (AN “ORGANIZATION”), THEN YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF YOURSELF AND SUCH ORGANIZATION, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND SUCH ORGANIZATION TO THIS AGREEMENT. References to “you” and “your” in this Agreement will refer to both the individual using the EAP Software and to any such Organization.
THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION PROVISION THAT, AS FURTHER SET FORTH IN SECTION 11 BELOW, REQUIRES THE USE OF ARBITRATION TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR ANY OTHER COURT PROCEEDINGS, OR CLASS ACTIONS OF ANY KIND.
- Subject to your obtaining a valid license key for the EAP Software from Spotify and your compliance with this Agreement, Spotify grants to you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to use the EAP Software and any documentation for the EAP Software made available by us to you in connection with this Agreement (the “Documentation”), solely for the purpose of internal evaluation and testing of the EAP Software by your Organization and subject to the number of individual user seats that you have purchased from Spotify (collectively, the “EAP License”). We reserve the right to modify, update or cease offering the EAP Software (including any feature or version thereof or access thereto via any third-party links) or Documentation at any time and for any reason without liability. The EAP Software and Documentation are licensed, not sold or transferred to you, and Spotify and its licensors retain ownership of all copies of the EAP Software (even after installation by you on any devices) and the Documentation.
- Any software provided by or on behalf of Spotify to you that updates, supplements or replaces the original EAP Software is governed by this Agreement unless separate license terms accompany such update, supplement or replacement, in which case such separate terms will govern in the event of a conflict between such separate terms and this Agreement or as otherwise provided in such separate terms.
- The EAP Software may be used with the Backstage open source platform (“Backstage OSS”). For clarity, Backstage OSS is governed by a separate license granted by the Linux Foundation pursuant to a separate agreement, and is not governed by this Agreement. More information on the license for Backstage OSS can be found at https://backstage.io/. In order to properly test and evaluate the EAP Software, you must ensure that you are using the latest version of the Backstage OSS. We make no commitments or guarantees that the EAP Software will work with the Backstage OSS. We are neither responsible nor liable for your use of, or inability to use, Backstage OSS.
- Confidential Information
- “Confidential Information” means all technical and non-public information provided by a party (“Disclosing Party”) to the other party (“Receiving Party”) that is (i) designated as confidential by the Disclosing Party at the time of disclosure, or (ii) should reasonably be considered confidential, given the nature of the information or the circumstances surrounding its disclosure. Confidential Information includes, without limitation, the terms and existence of this Agreement and the fact that you have obtained the EAP Software for testing and evaluation purposes. Without limiting the foregoing, (y) the EAP Software, Documentation, and any other nonpublic information or materials related to the EAP Software or Documentation that are obtained by you in connection with this Agreement constitutes the Confidential Information and property of Spotify, and (z) any nonpublic information or materials related to your proprietary software, systems, services and products that are obtained by Spotify in connection with this Agreement constitutes your Confidential Information and property, except to the extent that such information is incorporated into or necessary to use feedback on the EAP Software, in which case it shall be considered part of your Feedback pursuant to Section 4 below.
- The Receiving Party will use the Confidential Information solely as necessary to exercise the rights granted to it under this Agreement and shall only disclose Confidential Information to its employees, contractors, and other agents on a strictly need-to-know basis who are obligated by a written agreement to comply with confidentiality provisions equivalent in scope to and no less restrictive than those set forth in this Agreement and provided that the Receiving Party will remain responsible for their compliance with such agreement.
- The Receiving Party may use or disclose information that: (i) is or becomes publicly available through no act or omission by the Receiving Party; (ii) was already lawfully in the possession of the Receiving Party prior to the time of first disclosure to the Receiving Party by the Disclosing Party; (iii) is required to be disclosed by law; (iv) is independently developed by the Receiving Party without use of, reliance upon or reference to the Disclosing Party's Confidential Information; or (v) is lawfully obtained without restriction from a third party who has a right to make such disclosure.
- Restrictions on Use of the EAP Software
- You will only use the EAP Software: (i) for your Organization's internal evaluation and testing purposes; (ii) pursuant to any Documentation or other instructions Spotify may provide to you; and (iii) in accordance with applicable law and this Agreement.
- The following is not permitted for any reason whatsoever in relation to the EAP Software and Documentation, or any portion thereof: (i) reverse-engineering, decompiling, disassembling, modifying, or creating derivative works, except where such restriction is expressly prohibited by applicable law. If applicable law allows you to decompile any part of the EAP Software where required in order to obtain the information necessary to create an independent program that can be operated with the EAP Software or with another program, the information you obtain from such activities: (A) may only be used for the foregoing objective; (B) may not be disclosed or communicated without Spotify's prior written consent to any third party to whom it is not necessary to disclose or communicate in order to achieve that objective; and (C) may not be used to create any software or service that is substantially similar in its expression to any part of the EAP Software; (ii) copying, reproducing, modifying, creating derivative works of, redistributing, “ripping,” recording, transferring, performing, framing, linking to or displaying to the public, broadcasting, or making available to the public, or any other use which is not expressly permitted under this Agreement or applicable law, or which otherwise infringes intellectual property rights; (iii) selling, renting, sublicensing, leasing or other monetization or commercialization, or otherwise allowing any third party to access or use the EAP Software or Documentation; (iv) sharing any license keys, moving, changing, disabling, or circumventing the license key functionality in the EAP Software, or removing or obscuring any functionality in the EAP Software that is protected by the license key; (v) using the EAP Software or Documentation for purposes of: (A) benchmarking or competitive analysis of the EAP Software; (B) developing, using, or providing a competing software product or service; or (C) any other purpose that is to Spotify's detriment or commercial disadvantage; (vi) circumventing any technology used by Spotify, its licensors, or any third party; (vii) removing or altering any copyright, trademark, or other intellectual property notices (including for the purpose of disguising or changing any indications of ownership or source); (viii) deleting or altering any part of the EAP Software or Documentation except as expressly permitted under this Agreement; or (ix) allow the transfer, transmission, export or re-export of the EAP Software or any portion thereof in violation of any export control laws or regulations administered by the U.S. Commerce Department, OFAC, or any other EU, UN or U.S. government agency.
- Evaluation, Feedback and Publicity
- You will at your own risk and expense perform tests and other evaluations of the EAP Software. You agree to provide to Spotify information regarding the results of such tests and evaluations, and any related comments, suggestions, materials and the like, regarding the implementation, performance, features, and functionality of the EAP Software (“Feedback”). Feedback will constitute Confidential Information of Spotify. You will not provide any such Feedback to any third party without Spotify's prior written consent in each instance. To the extent permitted by applicable law, you hereby assign to Spotify all right, title and interest in and to such Feedback and acknowledge that we will be entitled to use, implement and otherwise exploit, and to allow others to exploit, any such Feedback in any manner without restriction, and without any obligation of confidentiality, attribution, accounting, or compensation. To the extent, if any, that any Feedback is not assignable or that you retain any right, title or interest in and to any Feedback, you hereby grant to us a perpetual, irrevocable, exclusive, fully paid-up, royalty-free, transferable, sublicensable (through multiple tiers), worldwide right and license to reproduce, distribute, display and perform (whether publicly or otherwise), make available, communicate to the public, prepare derivative works of and otherwise modify, make, sell, offer to sell, import, use, and otherwise exploit (and have others exercise such rights on our behalf) all or any portion of such Feedback, in any form or media (whether now known or later developed). Where applicable and to the extent permitted under applicable law, you also agree to waive, and not to enforce, any “moral rights” or equivalent rights, such as your right to be identified as the author of any Feedback. You hereby waive and quitclaim to us any and all claims that you now have or may hereafter have for any alleged infringement of any Feedback assigned and/or licensed hereunder to us. We will have no obligation to consider, use, return, or preserve any Feedback you provide to us.
- You agree to reasonably cooperate with Spotify in a case study, blog post, testimonial or the like discussing your impressions, early use and impact of the EAP Software on your Organization (“Publication”). The target audience of such Publication will be the Backstage OSS community and prospective customers of Spotify's plugins for Backstage. Any such Publication will be subject to your prior written consent, not to be unreasonably withheld. You agree that Spotify may use and display the Organization's name, logo, trademarks, and service marks on Spotify's websites in connection with any such Publication.
- Aggregated Data
- You acknowledge and agree that Spotify may obtain and aggregate technical and other data about your use of the EAP Software (“Aggregated Data”). Spotify may use the Aggregated Data, provided such Aggregated Data does not identify you or any individual user, to analyze, improve, support, and operate the EAP Software and otherwise for any business purpose, during and after the term of this Agreement.
- Use of the EAP Software is subject to payment. You may purchase a subscription directly from Spotify by executing an order form and paying the applicable subscription fees. You agree to pay any invoices for subscription fees within thirty (30) days from receiving such invoices from Spotify. If payments are not received on the invoice due date, Spotify reserves the right to charge late payment interest in accordance with applicable laws. Spotify also reserves the right to delay and/or suspend your access to the EAP Software until full payment is received.
- Unless stated otherwise, the amounts that must be paid under the Agreement are exclusive of VAT, GST, HST, sales taxes or other similar taxes, duties, charges or assessments (“Indirect Taxes”). Indirect Taxes will be added on top of agreed amounts as per local legislation. You and Spotify shall each be solely responsible for payment of all Indirect Taxes it is legally obliged to pay arising as a result of this Agreement or otherwise. Further, you and Spotify shall each be solely responsible for collection and remittance of all Indirect Taxes it is legally obliged to collect and remit. You and Spotify shall each be solely responsible for payment of any tax assessed on its income. You and Spotify acknowledge that as of the date of the applicable order form and, to the best of their knowledge, there is no withholding tax applicable to payments due under this Agreement. You and Spotify agree to apply withholding tax as required by the laws in the jurisdiction it transacts. You and Spotify further acknowledge that each party shall collect all relevant documentation needed in the event of a tax audit.
- Term; Termination
- These Terms will continue until the subscription end date specified on the last to expire order form (the “EAP Test Period”), unless earlier terminated as described below. Spotify may in its sole discretion extend the EAP Test Period (with or without requiring extra payment, subject to your acceptance) by providing you written confirmation (including via email) about such extension.
- Spotify may suspend your access to the EAP Software or terminate this Agreement (or an individual order form hereunder) for any reason at any time upon notice provided to you at the most current contact information that we have on file for you. You may terminate this Agreement by ceasing all use of and deleting the EAP Software. If Spotify suspends your access to the EAP Software or terminates this Agreement (or an individual order form), other than as a result of your breach or suspected breach of this Agreement, prior to the subscription end date stated on the applicable order form, Spotify will credit or refund to you a prorated portion of any applicable subscription fees paid in advance for such subscription period.
- Upon termination of this Agreement, you will immediately cease all use of the EAP Software and Documentation and delete all copies of the EAP Software, Documentation and Confidential Information in your possession or control. The following sections shall survive termination of this Agreement: Sections 2 (Confidentiality), 4 (Evaluation and Feedback), 5 (Aggregated Data) this 7(c) (Termination), 8 (Disclaimers), 9 (Indemnification), 10 (Limitation of Liability), 11 (Arbitration) and 12 (General).
- THE SPOTIFY LICENSED EAP SOFTWARE IS BEING MADE AVAILABLE TO YOU ONLY FOR YOUR INTERNAL EVALUATION AND TESTING PURPOSES. YOU ACKNOWLEDGE THAT ANY EAP SOFTWARE PROVIDED HEREUNDER IS A PRE-RELEASE VERSION ONLY, THAT SUCH EAP SOFTWARE IS NOT READY FOR GENERAL COMMERCIAL RELEASE, THAT SUCH EAP SOFTWARE SHALL NOT BE RELIED UPON IN CONNECTION WITH THE OPERATION OF YOUR BUSINESS, AND THAT THE EAP SOFTWARE MAY CONTAIN BUGS, ERRORS AND DEFECTS, AND THAT SPOTIFY SHALL HAVE NO OBLIGATION TO FIX SUCH BUGS, ERRORS OR DEFECTS. THE EAP SOFTWARE IS PROVIDED “AS IS,” WITH ALL FAULTS, DEFECTS AND ERRORS, AND WITHOUT WARRANTY OF ANY KIND. INSTALLATION OR USE OF THE EAP SOFTWARE IS AT YOUR OWN RISK AND MAY RESULT IN LOSS OF DATA, OR OTHER UNINTENDED CONSEQUENCES. FURTHER, SPOTIFY DISCLAIMS ANY EXPRESS, IMPLIED, AND STATUTORY WARRANTIES REGARDING THE EAP SOFTWARE AND DOCUMENTATION, INCLUDING WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
- You agree to defend, indemnify and hold Spotify harmless from and against all damages, losses, and expenses of any kind (including reasonable attorney fees and costs) arising out of or related to: (a) any unauthorized use of the EAP Software or Documentation; (b) your breach or alleged breach of this Agreement; and (c) your violation of any law or the rights of any third party.
- Limitation of Liability
- EXCEPT TO THE EXTENT PROHIBITED BY LAW, IN NO EVENT WILL SPOTIFY, ITS OFFICERS, SHAREHOLDERS, EMPLOYEES, AGENTS, DIRECTORS, SUBSIDIARIES, AFFILIATES, SUCCESSORS, ASSIGNS, SUPPLIERS, OR LICENSORS BE LIABLE FOR (a) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES; (b) ANY LOSS OF USE, DATA, BUSINESS, OR PROFITS (WHETHER DIRECT OR INDIRECT), IN ALL CASES ARISING OUT OF THE USE OF OR INABILITY TO USE THE EAP SOFTWARE OR DOCUMENTATION, REGARDLESS OF LEGAL THEORY, WITHOUT REGARD TO WHETHER SPOTIFY HAS BEEN WARNED OF THE POSSIBILITY OF THOSE DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE; OR (c) AGGREGATE LIABILITY FOR ALL CLAIMS ARISING UNDER THIS AGREEMENT OR RELATING TO THE EAP SOFTWARE OR DOCUMENTATION, MORE THAN THE GREATER OF (i) THE AMOUNTS PAID BY YOU TO SPOTIFY DURING THE TWELVE MONTHS PRIOR TO THE FIRST CLAIM; OR (ii) $500 USD.
- This Section 11 sets forth the terms and conditions pursuant to which disputes, claims and controversies between you and Spotify arising out of or relating to this Agreement or the EAP Software (“Disputes”) will be resolved through confidential arbitration (“Arbitration Agreement”). If for any reason this Arbitration Agreement is unenforceable as to you, Section 12(c) shall govern any such Dispute.
- Any Disputes arising out of or related to this Agreement or the EAP Software, including a dispute involving the alleged breach, termination or validity of this Agreement, will be resolved through arbitration instead of in a court by a judge or jury. You and Spotify agree that it each waives any right to trial by a jury. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim(s) before the arbitrator(s). The arbitration proceeding, including any arbitral award and all documents and other materials related to, or exchanged, during the arbitration proceedings will be kept strictly confidential by the recipient and shall not be used by the recipient for any purpose other than for purposes of the arbitration or the enforcement of the decision of the arbitrator(s) and related award and shall not be disclosed except in confidence to persons who have a need to know for such purposes or as required by applicable law. Notwithstanding the foregoing, you and Spotify both agree that nothing in this Arbitration Agreement will be deemed to waive, preclude, or otherwise limit our rights, at any time, to bring an action seeking temporary, preliminary or permanent injunctive relief in a court of law to the extent your use of the EAP Software breaches Section 2 (License), or Section 3 (Restrictions on Use of the EAP Software).
- Arbitration Rules: U.S. Arbitration. This Section 11(c) governs arbitration proceedings if Spotify USA, Inc. is the contracting entity to this Agreement. Either you or we may commence arbitration proceedings. Any Dispute shall be finally resolved by arbitration in accordance with the rules and procedures of the American Arbitration Association (“AAA”) then in force (the “AAA Rules”), including as to whether a single arbitrator or a panel of three arbitrators should resolve the Dispute, as modified by this Arbitration Agreement. You and Spotify agree that the Federal Arbitration Act applies and governs the interpretation and enforcement of this provision (despite the choice of law provision below). Any in-person arbitration hearings will take place in the County of New York, New York.
- Arbitration Rules: Non-U.S. Arbitration. This Section 11(d) governs arbitration proceedings if Spotify AB is the contracting entity to this Agreement. Either you or we may start arbitration proceedings. Any Dispute shall be finally resolved by arbitration in accordance with the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce (“SCC Rules”), including as to whether a single arbitrator or a panel of three arbitrators should resolve the dispute, as modified by this Arbitration Agreement, and administered by the Arbitration Institute of the Stockholm Chamber of Commerce (“SCC”). The seat of the arbitration shall be Stockholm, Sweden, and the arbitration shall be held, and the award shall be rendered, in the English language.
- There is no joint venture, partnership, agency, or fiduciary relationship existing between you and Spotify, and you and Spotify do not intend to create any such relationship under this Agreement. This is not an exclusive agreement. This Agreement does not create an obligation of either party to enter into a contract, subcontract or other business relationship.
- Spotify may assign any or all of this Agreement, and may assign or delegate, in whole or in part, any of its rights or obligations under this Agreement. You may not assign this Agreement, in whole or in part, nor transfer or sub-license your rights under this Agreement, to any third party.
- If this Agreement is between you and Spotify USA Inc., then this Agreement is governed by and shall be construed in accordance with the laws of the State of New York, United States of America, without regard to New York's choice or conflicts of law principles. Further, you and Spotify agree to the jurisdiction of the federal and state courts located in New York County, New York, to resolve any Dispute that relates to or arises in connection with this Agreement or the EAP Software that is not subject to mandatory arbitration under the Arbitration Agreement, and waive any jurisdictional, venue or inconvenient forum objections to such courts. If this Agreement is between you and Spotify AB, then this Agreement is governed by and shall be construed in accordance with the laws of Sweden, without regard to Sweden's choice or conflicts of law principles. Further, you and Spotify agree to the jurisdiction of the district court of Stockholm, Sweden to resolve any Dispute that relates to or arises in connection with this Agreement or the EAP Software that is not subject to mandatory arbitration under the Arbitration Agreement, and waive any jurisdictional, venue or inconvenient forum objections to such courts.
- This Agreement constitutes all the terms and conditions agreed upon between you and Spotify and supersede any prior agreements in relation to the subject matter of this Agreement, whether written or oral.
- Unless as otherwise stated in this Agreement, should any provision of this Agreement be held invalid or unenforceable for any reason or to any extent, the remaining provisions of this Agreement will not be affected, and the application of that provision shall be enforced to the extent permitted by law. Any failure by Spotify or any third-party beneficiary to enforce this Agreement or any provision thereof shall not waive Spotify's or the applicable third-party beneficiary's right to do so.