Thanks for using our products and services (“Services”).
The Services are provided by PodOmatic, Inc. (“PodOmatic”),
located at 10 Cleveland Street, San Francisco, CA 94103, United States.
By using our Services, You are agreeing to these terms.
Please read them carefully. If you do not agree to these Terms, do not use the Services.
This Terms of Service Agreement (the “Agreement”) is an agreement between you (the “User” or “You”)
and PodOmatic, Inc. ("PodOmatic ", "we", or "us").
We provide Users with access to certain Services (as defined below) to help our customers create, browse, search,
listen and manage podcasts by providing general and personalized content, hosting services, communication tools
and forums, mobile applications, networks and ecommerce tools and services (collectively, the “Services”) directly and through
the website and associated domains of
(the “Site".) This Agreement explains our obligations
to You, and your obligations to us. This Agreement is the entire Agreement between us. By using the Site and Networks in any way
guidelines posted on the Site.
- What We Own
All products and services available on the Site, and all products and services provided by or through PodOmatic,
its affiliates, subsidiaries, employees, agents, licensors or other commercial partners including, but not limited to,
software, all informational text, software documentation, design of and "look and feel," layout, photographs,
graphics, audio, video, messages, interactive and instant messaging, design and functions, files, documents,
images, or other products, whether publicly posted or privately transmitted as well as all derivative works thereof,
are owned by us or other parties that have licensed their material or provided services to us, and are protected
by copyright, trademark, trade secret and other intellectual property laws.
All PodOmatic trademarks and service marks, logos, slogans and taglines are the property of PodOmatic.
All other trademarks, service marks, logos, slogans and taglines are the property of their respective owners.
Except as otherwise specifically provided herein, nothing should be construed as granting any license or
right to use any trademarks, service marks, logos, slogans or taglines displayed on PodOmatic
without our express written permission, or the express written permission of such third-party
that may own the trademark, service mark, logo, slogan or tagline.
- Rights to Use What We Own
Subject to this Agreement, PodOmatic hereby grants You a limited, revocable, non-transferable
and non-exclusive license to use the Services through a user identification reference provided by
PodOmatic (“User ID”) to the extent, and only to the extent, necessary to access and use the Services
in accordance with the terms of this Agreement. This license does not permit You, and You agree not to:
store, copy, reproduce, republish, modify, upload, post, translate, scrape, rent, lease, loan, sell,
distribute, transfer, transmit, display, decompile, reverse engineer, reverse assemble, decipher
or otherwise attempt to discover any programming code or any source code used in or with the
Products or otherwise distribute in any way the Products other than as specifically permitted in this Agreement.
You may not sell, assign, sublicense, grant a security interest in or otherwise attempt to transfer any right
in the Products, create derivative works based on or in any manner commercially exploit the Products, in whole
or in part, other than as expressly permitted in this Agreement. Any use of the Products for any purpose other
than as specifically permitted herein or without our prior consent or the prior written consent of our licensors,
as applicable, is expressly prohibited. We reserve all rights not expressly granted in this Agreement.
We will provide You one User ID for your account, thereby permitting You access to the Services through the Site.
You agree to fully and accurately provide the information requested by us when setting up your accounts and to
regularly update such information. Your failure to do so may result in the cancellation of your account
and loss of Services.
- What You Provide to Us
You are legally responsible for all information, data, text, software, music, sound, photographs, graphics, video,
messages or other products uploaded, posted or stored in connection with your use of the Services (“Content”).
PodOmatic is not responsible for your Content.
You hereby grant PodOmatic a worldwide, royalty-free, non-exclusive license to:
a) host and use the Content in order to provide You with the Services;
b) to use, copy, encode, store, archive, distribute, transmit, modify, translate, dub, sub-title, create Teaser
Content, render into audible or other technical format, combine with other content, remix, publicly display
and publicly perform and distribute to third party websites and through embedded media players, your Content
in whole or in part via any means, including, without limitation, the internet or by wireless transmission,
in connection with any PodOmatic Property;
c) to use, copy, translate, display, publish and transmit your Content for the purpose of developing and
operating the PodOmatic Sites and Networks;
and You hereby represent and warrant that You have all the rights necessary to
grant us such license. You are responsible for any Content that may be lost or unrecoverable through your use of the Services.
You are encouraged to archive your Content regularly and frequently.
- Content on our Special Networks
You may from time to time, modify and update your Content as such modifications
and/or updates are deemed necessary or desirable by you and PodOmatic shall (to the extent
that your particular Content is used by PodOmatic on our Special Networks) use such Content
as modified or updated.
With respect to content on our Special Networks, You must post a new episode at least
once a month to remain on the PodOmatic Special Networks.
You must post one social media announcement that you are on the PodOmatic Special
Network to remain on the PodOmatic Special Network.
With respect to content, You must provide Content that is relevant and remains on topic
with the network your Content is included in.
With respect to your Content licensed hereunder, PodOmatic shall have the right to
determine, in our reasonable discretion, your Content we select to adapt for use on the
PodOmatic Sites at any time, and from time to time. Any of your Content which is owned or
controlled by a third party should incorporate such credit designated by such third party.
Labeling of Your Content. You shall include appropriate textual, graphical and/or audio
labels or warnings (as appropriate) on or in your Content where it contains material which is
unsuitable for children and/or is the type of content about which a reasonable adult would expect to be warned
(e.g., violence, adult themes, profanity). You shall comply with all legal requirements and industry best
practices in relation to such pre-labeling.
- Removal of Your Content from our Special Networks
You may, for good reason, from time to time require removal of any your Content from our Special Network Sites.
To do so, You should email us with the request. If You request removal of certain of your Content from the
PodOmatic Sites, we will complete such removal within 30 days following receipt of your request for such removal.
PodOmatic may no longer wish to include your Content on our Special Network. We will notify you of our intent
of removing your Content from the PodOmatic Sites and Special Networks and your Content will be removed within
30 days following PodOmatic's notice to You. However, PodOmatic may, immediately upon becoming aware of breach
of Contract and Terms and Conditions of the PodOmatic Sites remove the relevant Content or any part from the
PodOmatic Networks and Sites.
- Ownership of PodOmatic Networks and Properties
You acknowledge and agree that:
(a) PodOmatic owns all right, title and interest in the PodOmatic Networks and Sites
(except for any of Your Content appearing in the PodOmatic Networks and Sites); and
(b) nothing in this Agreement confers in You any right of ownership in the PodOmatic Networks and Sites.
PodOmatic will own any derivative works or improvements or other Intellectual Property Rights that
are created under this Agreement that are based upon or that incorporate the Your Content,
excluding Your Content themselves.
You acknowledge and agree that PodOmatic will be solely responsible for the design, layout, look-and-feel,
posting, and maintenance of any and all aspects of the PodOmatic Networks and Sites, including without
limitation the display and performance of the Your Content and Teaser Content. PodOmatic does not
have any duty or obligation, express or implied, to post, host, stream or otherwise include any of
Your Content in any PodOmatic Network.
You acknowledge and agree that the PodOmatic Networks may be seasonal and PodOmatic
at it sole discretion may display or take off Network at any time. PodOmatic does not have any
duty or obligation, express or implied, to post, host, stream or otherwise include any of Network.
- Advertising Rights
PodOmatic has no duty or obligation to sell, license any advertising on its PodOmatic
Networks or Sites or on Your Content. PodOmatic has the sole right to sell or license any and
all advertising and promotional rights with respect to the PodOmatic Networks
(including without limitation on all Content Pages, pages of the PodOmatic Networks that
contain Your Content or during the streaming or embedding of Your Content from or through
the PodOmatic Networks).
PodOmatic agrees to distribute net advertising revenue allocated to Your Content
to you within 45 days after end of quarter in which payment is received from
advertiser. Net advertising revenue is monies received and paid from advertisers less
transaction fees and expenses. You acknowledge and agree that the advertising rates are
subject to change at the sole discretion of PodOmatic.
PodOmatic will use its best efforts to provide reporting of advertising sales allocated to
Your Content. PodOmatic will pay out allocated advertising revenue to You after taxes.
You agree to provide PodOmatic with required tax documents to enable PodOmatic
to issue payments according to law.
Nothing in this Agreement obligates or may be deemed to obligate PodOmatic to sell, license
or to offer to sell or license any advertising or promotional rights.
- Giving Us Access to Other Accounts and Services
Some of our Services may require You to give us access to or require You to provide login information and password information
for accounts or services You may have with third party providers. When You provide this information to us or give us access
to these third party accounts You agree that You have read all contracts and written agreements governing such access,
login information and passwords and that You have all the necessary contractual and legal rights to give us such access,
login information and passwords.
- Comments and Feedback
Any questions, comments, suggestions, ideas, feedback, or other information provided by You to us (“Comments”) are not
confidential and You hereby grant us a worldwide, perpetual, irrevocable, royalty-free license to reproduce, display,
perform, distribute, publish, modify, edit or otherwise use such Comments as we deem appropriate, for any
and all commercial and/or non-commercial purposes, in our sole discretion.
- Monitoring What You Provide Us
PodOmatic may, but has no obligation to, monitor Content on the Site or podcasts created using our Services.
We may disclose any information necessary or appropriate to satisfy our legal obligations, protect PodOmatic
or its customers, or operate the Services properly.
PodOmatic, in its sole discretion, may refuse to post, remove, or require You to remove, any Content,
in whole or in part, alleged to be unacceptable, undesirable, inappropriate, or in violation of this Agreement.
- Copyright Complaint
If You believe that Your work has been used or copied in a way that constitutes copyright infringement and such
infringement is occurring on this Site, please notify PodOmatic. Pursuant to Title 17, United States Code, Section 512(c)(3),
a notification of claimed infringement must be a written communication addressed to the designated agent as set forth below,
and must include substantially all of the following:
a physical or electronic signature of the person authorized to act on behalf of the owner of the copyright
interest that is alleged to have been infringed;
a description of the copyrighted work or works that You claim have been infringed ("infringed work")
and identification of what material in such work(s) is claimed to be infringing ("infringing work")
and which You request to be removed or access to which is to be disabled;
a description of where the material that You claim is infringing is located on the Site;
information sufficient to permit PodOmatic to contact You, such as your physical address, telephone number, and email address;
a statement by you that You have a good faith belief that the use of the material identified in your Notice
in the manner complained of is not authorized by the copyright owner, its agent, or the law;
a statement by You that the information in your Notice is accurate and, under penalty of perjury that You are
the copyright owner or authorized to act on the copyright owner's behalf.
You agree to all of the following:
You hereby certify that you are at least 13 years of age. Individuals under the age of 13 are prohibited from using the Services
You will ensure the email address provided in your account registration is valid at all times and will keep your
contact information accurate and up-to-date.
You will not use the Services for any unlawful purposes or to conduct any unlawful activity, including,
but not limited to, fraud, embezzlement, money laundering or insider trading.
You will not use the Services if You are located in a country embargoed by the U.S.,
or are on the U.S. Treasury Department's list of Specially Designated Nationals.
You will not use the Services to impersonate another person.
You will not imply or state, directly or indirectly, that You are affiliated with
or endorsed by PodOmatic without our express written permission.
You may not send unsolicited messages (also known as junk mail or SPAM)
to promote any podcast published on the Site.
You may not upload post, email, transmit or otherwise make available or initiate any Content
that contains software viruses, worms, Trojan horses or any other computer code, files or programs that interrupt,
destroy or limit the functionality of the Services or that may impact the ability of
any PodOmatic user to access the Services.
You will not access the Services through automated methods. The Services may only be used or accessed
through an electronic device through manual control at all times.
You may not send messages using the Services which do not correctly identify the sender and You may
not alter the attribution of origin in electronic mail messages or postings.
You will not share your password, let anyone else access your account, or do anything that might
jeopardize the security of your account. You will not attempt to or actually access the Services by any means
other than through the interfaces provided by PodOmatic.
You will not attempt to or actually override any security component included in or underlying the Services.
You will not attempt or engage in any action that directly or indirectly interferes with the proper working
of or places an unreasonable load on PodOmatic’s infrastructure.
You will not publish Content, or links to Content, that is:
Pornographic, sexually explicit, or violent.
Illegal (including stolen copyrighted material and material that infringes or has the potential
to infringe the intellectual property rights of another).
Reasonably likely to cause harm, or that could be reasonably considered as slanderous or libelous.
Breaches another’s privacy.
You will not publish Content that is spam, is machine- or randomly-generated, and/or contains unethical or
unwanted commercial content designed to drive traffic to third party sites or boost the search engine rankings
of third party sites, or to further unlawful acts (such as phishing), or mislead recipients as to the source of
the material (such as spoofing).
You verify that your country of residence is the same as your billing address.
PodOmatic may determine in its sole discretion whether or not an account is in violation of any of these policies.
Violation of any of these policies may result in user information tracking with such information being stored to identify the offending user.
Offending users may be permanently restricted from holding an account or using the Services.
If PodOmatic reasonably determines that your account is being used for illegal or fraudulent activity then
your account may be immediately terminated and your financial data erased. We may also report you
to law enforcement officials in the appropriate jurisdictions.
You may agree to a one (1) month, six (6) month, twelve (12) month or twenty-four (24) month contract agreement with
PodOmatic. Some of the features on the Service require payment of fees, as described for each Service
on the Site (“Fees”). If You sign up for these features, You must pay all applicable feature Fees. We reserve the
right to change our prices and/or bundle certain parts of the Service together for pricing purposes, and may do
so at any time. You authorize us to make any reasonably necessary inquiries to validate your account and financial information.
All Fees are in USD and are exclusive of all taxes, levies, or duties imposed by taxing authorities, and You are
responsible for payment thereof. If You purchase any Services that we offer for a Fee, You consent to PodOmatic,
or our third party service providers, storing your payment card information and You authorize us to charge You (a)
any Fees for Services You may purchase, and (b) any applicable taxes in connection with your use of the Services to
the payment card You provide, and You will reimburse us for all collection costs and interest for any overdue amounts.
If the payment card You provide expires and You do not provide new payment card information or cancel your account,
You authorize us to continue billing you and You will remain responsible for any uncollected Fees.
AT THE END OF THE CONTRACT TERM, YOUR CONTRACT WILL AUTOMATICALLY RENEW FOR AN ADDITIONAL CONTRACT TERM UNTIL
EXPLICITLY CANCELLED BY YOU, AND YOUR PREFERRED PAYMENT METHOD WILL BE CHARGED ACCORDINGLY. CANCELLATIONS MUST
BE ISSUED VIA YOUR PODOMATIC ACCOUNT ONLY. ANY CANCELLATION MUST BE DONE THREE (3) DAYS PRIOR
TO THE END OF THE CONTRACT TERM TO ALLOW FOR ADEQUATE PROCESSING TIME. NO REFUNDS WILL BE GIVEN FOR ANY DAYS
REMAINING IN YOUR CURRENT BILLING CYCLE.
YOU ARE SOLELY RESPONSIBLE FOR PROPERLY CANCELING YOUR ACCOUNT. AN EMAIL OR PHONE REQUEST TO CANCEL YOUR ACCOUNT
IS NOT CONSIDERED CANCELLATION. YOU CAN CANCEL YOUR ACCOUNT AT ANY TIME BY CLICKING ON THE ACCOUNT LINK IN THE
GLOBAL NAVIGATION BAR AT THE TOP OF THE SCREEN. THE ACCOUNT SCREEN PROVIDES A SIMPLE NO QUESTIONS ASKED
CANCELLATION "GO BASIC" LINK. SUBSCRIBERS USING PAYPAL ARE RESPONSIBLE TO CONFIRM CANCELLATION VIA THE
PAYPAL SITE. PODOMATIC IS NOT RESPONSIBLE FOR CHARGES OCCURRING FROM IMPROPERLY
CANCELLED SUBSCRIPTIONS. IF YOU CANCEL THE SERVICE BEFORE THE END OF YOUR CURRENT PAID-UP MONTH,
YOUR CANCELLATION WILL TAKE EFFECT IMMEDIATELY AND YOU WILL NOT BE CHARGED AGAIN. DELETING
YOUR PODOMATIC ACCOUNT IS NOT THE SAME AS CANCELING YOUR PRO ACCOUNT.
Only Services and features clearly indicated as "free" or "no charge" are free or without charge.
It is not the responsibility of PodOmatic to provide free support for You in the use
and operation of PodOmatic. All other applications, features, functionality and support
provided by PodOmatic and its partners are provided for the fees described for each service
on the Site (“Fees”) and You are liable for such Fees.
- Cancellation; Service Changes
If you cancel the Service, your cancellation will take effect immediately. After cancellation, you will no
longer have access to your files, data and information stored in your account and we may delete all information.
We accept no liability for such deleted information or content.
For as long as we continue to offer the Service, we will provide and seek to update, improve, and expand the
Service. As a result, we allow You to access the Service as it may exist and be available on any given day and
have no other obligations, except as expressly stated in these Terms. We may modify (e.g., change data storage
or capacity limits), replace, refuse access to, suspend or discontinue the Service, partially or entirely, or
change and modify prices for all or part of the Services for You or for all our users in our sole discretion.
All of these changes are effective upon their posting on our site or by direct communication to You unless
otherwise noted. We further reserve the right to withhold, remove and or discard any Content available as part
of your account, with or without notice if deemed by us to be contrary to these Terms. For avoidance of doubt,
we have no obligation to store, maintain, or provide you a copy of any Content that You or others provide
when using the Service.
You take full responsibility for all taxes and fees of any nature associated with Services.
Services may be terminated by us, without cause, at any time.
Services may be terminated by You, without cause, by following the cancellation procedures set forth in Section 13 Fees.
PodOmatic may terminate Services at any time, without penalty and without notice, if You fail to
comply with any of the terms of this Agreement or the intellectual property protections applicable to these Services.
Notice of termination of Services by PodOmatic may be sent to the contact e-mail associated with your account.
Upon termination, PodOmatic has the right to delete all data, files, or other information that is stored in your account.
- Errors and Access to Site
YOU ARE SOLELY RESPONSIBLE FOR THE ACCURACY AND APPROPRIATENESS OF ALL DATA AND CONTENT WITHIN YOUR PODCAST;
INCLUDING SALES TAX CALCULATIONS, PRODUCT PRICING, AND PRODUCT DESCRIPTIONS, SHIPPING CHARGES, CONTACT INFORMATION,
EMAIL COMMUNICATIONS, AND ELECTRONIC PAYMENT PROCESSING. PODOMATIC WILL NOT BE HELD RESPONSIBLE
FOR INACCURATE INFORMATION AND ANY POTENTIAL DAMAGES CAUSED BY SUCH INACCURACIES. YOU FURTHER UNDERSTAND THAT
PODOMATIC MAY NOT MAINTAIN COPIES OF FILES OR DOCUMENTS THAT ARE SENT BY YOU AND THAT
YOU ARE SOLELY RESPONSIBLE FOR BACKING UP THIS DATA.
- Third Party Websites; Third Party Services; No Implied Endorsement
The Site may contain links to other web sites owned by third parties ("Third Party Sites").
Please note that when you click on any of these links, You are entering another website for which
we have no responsibility or control. You may also have the ability through the Site to login to accounts
that You have for services provided by third parties (“Third Party Services”) or to link accounts for
Third Party Services to your PodOmatic account. PodOmatic is not responsible
for any activity occurring within Third Party Services, even if logged in through or linked
to a PodOmatic account.
You agree that we shall not be responsible for any loss or damage of any sort incurred as a result of your
use of any Third Party Sites and/or Third Party Services, whether or not You were linked to or directed to a
Third Party Site or Third Party Service through the Site. You acknowledge that Third Party Sites and
Third Party Services may be subject to the applicable third party provider’s terms of service,
and You are solely responsible for reviewing and complying with any such terms of service. In no event
shall any reference on the Site to any third party, third party website or third party product or service
be construed as an approval or endorsement by us of that third party, third party website or of any
product or service provided by a third party.
- Disclaimer and Warranty
THE SITE, SERVICES ARE PROVIDED “AS IS,” “AS AVAILABLE,” “WITH ALL FAULTS” AND WITHOUT ANY WARRANTY OF ANY KIND,
EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, PODOMATIC AND ITS
LICENSORS DISCLAIM ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO,
ANY IMPLIED WARRANTIES OF TITLE, MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
WITHOUT LIMITING THE FOREGOING, NEITHER PODOMATIC NOR ITS LICENSORS WARRANT THAT ACCESS
TO THE SITE, THE SERVICES AVAILABLE ON OR THROUGH THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS,
IF ANY, WILL BE CORRECTED; NOR DOES PODOMATIC OR ITS LICENSORS MAKE ANY REPRESENTATIONS ABOUT
THE ACCURACY, RELIABILITY, CURRENCY, QUALITY, COMPLETENESS, USEFULNESS, PERFORMANCE, SECURITY, LEGALITY
OR SUITABILITY OF THE SERVICES, THE SITE. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SITE AND YOUR RELIANCE
UPON THE SERVICES IS AT YOUR SOLE RISK. IN ADDITION, PODOMATIC IS NOT RESPONSIBLE,
AND MAKES NO REPRESENTATIONS OR WARRANTIES FOR THE DELIVERY OF ANY MESSAGES (SUCH AS EMAILS, POSTING OF
ANSWERS OR TRANSMISSION OF ANY OTHER USER GENERATED CONTENT) SENT THROUGH THE SITE TO ANYONE.
IN ADDITION, YOU ACKNOWLEDGE AND AGREE THAT ANY DATA, INFORMATION, CONTENT OR PRODUCTS CONTAINED IN OR MADE
AVAILABLE IN CONNECTION WITH THE SERVICES IS NOT INTENDED AS A SUBSTITUTE FOR, THE KNOWLEDGE, EXPERTISE,
SKILL AND JUDGMENT TAX, LEGAL OR OTHER PROFESSIONALS. THE SERVICES DO NOT PROVIDE TAX OR LEGAL ADVICE.
YOU ARE RESPONSIBLE FOR OBTAINING SUCH ADVICE.
FURTHER, PODOMATIC AND ITS LICENSORS MAKE NO REPRESENTATION OR WARRANTIES THAT THE SERVICES
OR THE SITE ARE APPROPRIATE OR AVAILABLE FOR USE IN ALL GEOGRAPHIC LOCATIONS. IF YOU USE THE SITE, THE SERVICES
OUTSIDE THE UNITED STATES OF AMERICA, YOU ARE SOLELY RESPONSIBLE FOR COMPLIANCE WITH ALL APPLICABLE LAWS,
INCLUDING WITHOUT LIMITATION EXPORT AND IMPORT REGULATIONS OF OTHER COUNTRIES. NEITHER PODOMATIC
NOR ANY THIRD PARTY PROVIDERS, PARTNERS OR AFFILIATES WARRANT THAT THE SITE, ITS SERVERS THE PRODUCTS
OR THE SERVICES OR ANY E-MAIL SENT FROM THE SITE OR ANY THIRD PARTY PROVIDERS, PARTNERS OR AFFILIATES
ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
THIS AGREEMENT APPLIES SOLELY TO THE SITE. AS PART OF THE SERVICES PROVIDED TO OTHER PODOMATIC USERS,
WE HOST WEBSITES FOR CERTAIN THIRD PARTIES (“THIRD PARTY SITES”). THIRD PARTY SITES INCLUDE CONTENT GENERATED
BY THIRD PARTIES AND ARE NOT UNDER THE MANAGEMENT AND CONTROL OF PODOMATIC. PODOMATIC
IS NOT RESPONSIBLE FOR SUCH THIRD PARTY SITES, INCLUDING WITHOUT LIMITATION, THE ACCURACY, SUFFICIENCY,
CORRECTNESS, RELIABILITY, VERACITY, COMPLETENESS OR TIMELINESS THEREOF, ANY LINK CONTAINED THEREIN,
OR ANY CHANGES OR UPDATES THERETO, OR ANY GOODS OR SERVICES SOLD THEREON. YOUR ACCESS OR USE
OF ANY THIRD PARTY SITE IS GOVERNED BY THE TERMS APPLICABLE TO SUCH THIRD PARTY SITE.
THE HOSTING OF ANY THIRD PARTY SITE BY PODOMATIC DOES NOT IMPLY AN ENDORSEMENT THEREOF
BY PODOMATIC, OR OF THE PROVIDER OF SUCH CONTENT OR SERVICES, OF ANY THIRD PARTY SITE.
- Limitation of Liability
WE ARE NOT LIABLE TO YOU OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY PUNITIVE,
EXEMPLARY, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY PERSONAL INJURY,
LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA ON YOUR COMPUTER OR OTHERWISE) ARISING FROM
OR IN CONNECTION WITH USE OF THE SITE, THE SERVICES, YOUR CONTENT, THE COMMERCIAL PRODUCTS OR ANY
THIRD-PARTY USER GENERATED CONTENT AVAILABLE ON OR THROUGH THE SITE, WHETHER UNDER A THEORY OF BREACH OF CONTRACT,
NEGLIGENCE, STRICT LIABILITY, MALPRACTICE OR OTHERWISE, EVEN IF PODOMATIC HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES. YOU HEREBY RELEASE PODOMATIC AND HOLD
PODOMATIC AND ITS PARENTS, SUBSIDIARIES, AFFILIATES, LICENSORS, AND THEIR OFFICERS, DIRECTORS,
TRUSTEES, AFFILIATES, SUBCONTRACTORS, AGENTS AND EMPLOYEES, HARMLESS FROM ANY AND ALL CLAIMS, DEMANDS,
AND DAMAGES OF EVERY KIND AND NATURE (INCLUDING, WITHOUT LIMITATION, ACTUAL, SPECIAL, INCIDENTAL AND CONSEQUENTIAL),
KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY
CONNECTED WITH THE USE OF THE SERVICES, PRODUCTS, SITE, YOUR CONTENT, COMMERCIAL PRODUCTS OR ANY
THIRD-PARTY USER GENERATED CONTENT AVAILABLE ON OR THROUGH THE SITE.
YOU HEREBY WAIVE THE PROVISIONS OF ANY STATE OR LOCAL LAW LIMITING OR PROHIBITING A GENERAL RELEASE.
- Exclusive Remedy
IN THE EVENT OF ANY PROBLEM WITH THE SITE, THE SERVICES, YOU AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY IS TO
CEASE USING THE SITE, AND THE SERVICES. UNDER NO CIRCUMSTANCES SHALL PODOMATIC, ITS AFFILIATES,
OR LICENSORS BE LIABLE IN ANY WAY FOR YOUR USE OF THE SITE, THE SERVICES, YOUR CONTENT, THE COMMERCIAL PRODUCTS
OR THIRD PARTY USER GENERATED CONTENT AVAILABLE ON OR THROUGH THE SITE, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS
OR OMISSIONS, ANY INFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTS OR OTHER RIGHTS OF THIRD PARTIES,
OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF, OR RELATED TO, THE USE OF THE SITE,
THE SERVICES, YOUR CONTENT, THE COMMERCIAL PRODUCTS OR ANY THIRD PARTY USER GENERATED CONTENT AVAILABLE ON
OR THROUGH THE SITE.
Certain states and/or jurisdictions do not allow the exclusion of implied warranties
or limitation of liability for incidental or consequential damages, so the exclusions set forth above
may not apply to You.
We may modify, replace, refuse access to, suspend or discontinue the Services, partially or entirely, or add,
change and modify prices for all or part of the Services for You or for all our users at any time and in our
sole discretion. All of these changes shall be effective upon their posting on the Site or by direct
communication to You unless otherwise noted. We further reserve the right to withhold, remove
and/or discard any content available as part of your account, with or without notice
if deemed by us to be contrary to this Agreement. For avoidance of doubt, PodOmatic
has no obligation to store, maintain or provide You a copy of any content that you or other
users provide when using the Services.
You agree to indemnify, hold harmless, and defend PodOmatic and its licensors, suppliers, officers,
directors, employees, agents, affiliates, subsidiaries, successors and assigns (collectively "Indemnified Parties")
from and against any and all liability, loss, claim, damages, expense, or costs (including
but not limited to attorneys' fees), incurred by or made against the Indemnified Parties in connection with any
claim arising from or related to (i) your use (or anyone using your account) use of the Services or the Site,
(ii) your Content, or (iii) any Commercial Products You offer on or through the Site or using our Services.
This includes, but is not limited to, any breach or violation of this Agreement by You or anyone utilizing your account.
You agree to fully cooperate at your expense as reasonably required by an Indemnified Party.
Each Indemnified Party may, at its election, assume the defense and control of any matter for which it is
indemnified hereunder. You shall not settle any matter involving an Indemnified Party without the consent of
the applicable Indemnified Party.
We reserve the right, in our sole discretion, to modify or replace any part of this Agreement at any time,
effective upon the date of the change. In the event of any such change, we will post a notice on the Site
that we have changed this Agreement. If You have a PodOmatic account, we may (but are
not required to) provide You with notice via the email address that we have on file for You that we have changed
this Agreement. You and we both understand that sometimes there are issues with email communication. We are
not responsible if any email notice gets caught by your SPAM filter and You do not see it, if You have given us
the wrong email address or failed to update your address, or if there are other communications issues that
prevent email from reaching You. Therefore, we encourage You to frequently visit this page periodically to
monitor any changes. Your continued use of or access to the Services following the posting of any changes to
this Agreement constitutes acceptance of those changes.
We may also, in the future, offer new services and/or features through the Site. For the avoidance of doubt,
such new features and/or services shall be subject to the terms and conditions of this Agreement.
The formation, interpretation and performance of this Agreement and any disputes arising out of it shall
be governed by the substantive and procedural laws of the state of California without regard to its rules
on conflicts or choice of law and, to the extent applicable, the laws of the United States of America.
The exclusive jurisdiction and venue for actions related to the subject matter hereof shall be the state
and federal courts located in San Francisco, California, and You hereby submit to the personal jurisdiction
of such courts. You hereby waive any right to a jury trial in any proceeding arising out of or related to this Agreement.
The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
Please also note that certain information, statements, data and content (such as photographs) which You post to the Site
are likely to reveal your gender, ethnic origin, nationality, age, and/or other personal information about You.
You acknowledge and agree that your submission of such information is voluntary on your part. Further, You acknowledge,
consent and agree that we may access, preserve, and disclose your registration and any other information you provide if
required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary
You acknowledge that a violation or attempted violation of any of this Agreement will cause such damage to
PodOmatic as will be irreparable, the exact amount of which would be impossible to ascertain and
for which there will be no adequate remedy at law. Accordingly, You agree that PodOmatic shall be
entitled as a matter of right to an injunction issued by any court of competent jurisdiction, restraining
such violation or attempted violation of these terms and conditions by You, or your affiliates, partners,
or agents, as well as to recover from You any and all costs and expenses sustained or incurred by
PodOmatic in obtaining such an injunction, including, without limitation, reasonable attorney's fees.
You agree that no bond or other security shall be required in connection with such injunction.
In no event shall You be entitled to rescission, injunctive or other equitable relief, or to enjoin or
restrain the operation of PodOmatic, the exploitation of any advertising or other products
issued in connection therewith, or the exploitation of the Site or any content used or displayed through the Site.
If any portion of this Agreement is found to be unenforceable, the remaining portion will remain in full force and effect.
If we fail to enforce any portion of this Agreement, it will not be considered a waiver.
Any amendment to or waiver of this Agreement must be made in writing and signed by us.
You will not transfer any of your rights or obligations under this Agreement to anyone else without our prior written consent.
All of our rights and obligations under this Agreement are freely assignable by us in connection with a merger,
acquisition, or sale of assets, or by operation of law or otherwise.
This Agreement does not confer any third party beneficiary rights.
A printed version of this Agreement and of any related notice given in electronic form shall be admissible
in judicial or administrative proceedings based upon or relating to this Agreement to the same extent
and subject to the same conditions as other business documents and records originally generated and maintained in printed form.