Terms of Use
Podcorn Platform Podcaster Terms of Use
Last Updated August 10th, 2021The following Podcaster Terms of Use (the “Podcaster Terms of Use”) govern your access to and use of (1) the Podcorn website located at http://www.podcorn.com (the “Website”), (2) the Podcorn online platform facilitating the matching of persons offering to create promotional podcast content (each, a “Podcaster”) and Brand Advertisers (as defined below), and (3) all other services provided by Podcorn, as described on the Website (collectively, the “Platform”). These Podcaster Terms of Use form an agreement between Podcorn Media, Inc. (“Podcorn”, “us”, “we”, “our”) and you.
The term “you” refers to the person or entity visiting, browsing or otherwise using the Platform and to Podcasters using the Platform to connect with individuals or businesses registered with Podcorn (each, a “Brand Advertiser”) for the purpose of creating promotional podcast content (“Promotional Content”) for Brand Advertiser’s products or services (each, a “Promotion”). By accessing and using (the term “use” when used herein in respect of the Platform shall mean access or use, and using shall have a corresponding meaning) the Platform, you accept and agree to be bound by and comply with these Podcaster Terms of Use.
If you do not accept and agree to be bound by these Podcaster Terms of Use, please do not access or use the Platform. If you are accessing or using the Platform on behalf of another person or a corporate entity, you represent and warrant that you have the authority to bind such person or entity to these Podcaster Terms of Use. If you are a Brand Advertiser, your use of the Platform is governed by our Brand Advertiser Terms of Use.
The Platform is provided solely (the “Permitted Use”) to: (1) assist you in gathering information about the various types of Promotion opportunities and Brand Advertisers available on the Platform, including profiles, price ranges, and Promotion descriptions (each, a “Brand Advertiser Profile”); (2) enable you to post information regarding yourself and to respond to any Promotion opportunities; (3) post reviews of Brand Advertisers; (4) facilitate communication with Brand Advertisers with the objective of entering into a Promotion Agreement; and (5) facilitate the transmission of payments from the Brand Advertiser to you under a Promotion Agreement (“Platform Services”).
Changes to these Podcaster Terms of Use and Platform
Except where prohibited by applicable law, Podcorn reserves the right to change these Podcaster Terms of Use at any time without notice. Your continued access to or use of the Platform after any changes to these Podcaster Terms of Use indicates your acceptance of such changes. It is your responsibility to review these Podcaster Terms of Use regularly.
Podcorn reserves the right to change any information, material or content (including, but not limited to, price, features, availability of Brand Advertisers, Brand Advertiser Profiles, types of Promotions, and reviews of Promotions and Brand Advertisers) contained on or provided through the Platform (the “Content”) at any time, and from time to time, without notice.
Use of the Platform
By using the Platform, you give Podcorn permission to present you with various sales opportunities, and from time to time and upon your consent, represent you in such a sales representation relationship.
As a condition of your use of the Platform, you warrant that: (a) you have reached the age of majority in your jurisdiction of residence; (b) you possess the legal authority to create a binding legal obligation; (c) you shall use the Platform in accordance with these Podcaster Terms of Use; and (d) all information supplied by you on the Platform is true, accurate, current and complete.
Podcorn retains the right, at its sole discretion, to deny access to anyone to the Platform or the services it offers, at any time and for any reason, including, but not limited to, for violation of these Podcaster Terms of Use. You shall cease and desist from any such access or use immediately upon request by Podcorn.
License Grants
Subject to these Podcaster Terms of Use, Podcorn grants you a personal, revocable, non-exclusive and non-transferable license during the Term to permit you to access and use the Platform in accordance with these Podcaster Terms of Use.
Subject to these Podcaster Terms of Use, you grant to Podcorn a perpetual, transferrable, irrevocable, royalty-free, fully paid-up, worldwide and fully sublicensable license to access, collect, store and use any data, information, records and files that (1) you load, transmit to or enter into the Platform, or (2) we collect from your local computer system or from third-parties with your permission, and (in each case) including all results from processing such data, including compilations, and derivative works thereof solely for the purpose of: (A) providing the Platform, (B) complying with applicable law, and (C) Podcorn’s reasonable audit and data retention policies. In addition, and subject to these Podcaster Terms of Use, you grant to Podcorn a perpetual, transferable, irrevocable, royalty-free, fully paid-up, worldwide and fully sublicensable license to access, collect, store and use any data or information related to listenership, and disclose it to any third parties.
User Account
You will be required to successfully sign up for a user account (the “User Account”) using the available interfaces at the Platform and be issued with a username and password login credentials by Podcorn (“User ID”) in order to use the Platform and communicate with Brand Advertisers through the Platform. If you are issued with a User ID, you shall keep your User ID secure and shall not share your User ID with anyone else, and you shall not collect or harvest any personal data of any other user of Podcorn, including account names. Podcorn reserves the right to disable any User Account issued to you at any time in Podcorn’s sole discretion. If Podcorn disables access to a User Account issued to you, you may be prevented from accessing the Platform, your account details or any Promotions that are associated with your account.
Term and Termination
We may terminate your access to and use of the Platform, at our sole discretion, at any time and without notice to you. You may cancel your Account at any time by sending an email to us at support@podcorn.com. Upon any termination, discontinuation or cancellation of your Account or access to the Platform, all provisions of these Podcaster Terms of Use which by their nature should survive will survive, including, without limitation, ownership provisions, warranty disclaimers, limitations of liability, and dispute resolution provisions.
Promotion Agreements with Brand Advertisers
The Platform permits you to view the Brand Advertiser Profiles of Brand Advertisers who have registered on our Platform and have chosen to allow you to view their Brand Advertiser Profiles. If a Brand Advertiser selects you for a Promotion through the Platform, you may separately enter into an agreement with that Brand Advertiser on such terms and conditions as may be agreed to between you and that Brand Advertiser (“Promotion Agreement”). For example, the Promotion Agreement may contain (a) a description of the services you will provide to the Brand Advertiser, (b) payment terms, and (c) any other terms and conditions as communicated between you and the Brand Advertiser through this Platform or otherwise. You understand that you are performing services for the Brand Advertiser, and not Podcorn, and that Podcorn is not a party to and will be in no way responsible for the performance of either you or the Brand Advertiser under any Promotion Agreement, except for facilitating the transmission of payment from the Brand Advertiser to you on their instructions in accordance with these Podcaster Terms of Use. You further understand and agree that Promotional Content shall remain publicly accessible through your podcast distribution and/or social media channels (as specified in the Promotion Agreement) for a minimum of six (6) months, or such greater term as specified in the Promotion Agreement. Podcorn does not make any representations or warranties of any kind in respect of a Brand Advertiser or a Promotion Agreement. You also agree to act in good faith when negotiating and performing your obligations under each Promotion Agreement.
No Employment Relationship
As a Podcaster making use of the Platform, you acknowledge and agree that you and Podcorn are in a direct business relationship, and the relationship between the parties under this Agreement is solely that of independent contracting parties. These Podcaster Terms of Use are not an employment agreement and do not create an employment relationship between you and Podcorn. No partnership, agency, joint-venture, or employment relationship can be created between Podcorn and Podcasters through the Platform.
You will take no position with respect to or on any tax return or application for benefits, or in any proceeding directly or indirectly involving Podcorn that you are an employee of Podcorn.
You are solely responsible for determining which Promotions you will choose to accept, the manner in which you will perform your obligations under Promotion Agreements, and how, when, where, and how long you will use the Platform.
Podcorn does not restrict your right to provide services through other platforms or to other parties, including competitors of the Podcorn. Podcorn anticipates and expects that Podcasters performing Promotions through the Platform will provide services through other platforms. You acknowledge and represent you can earn income from other sources. Podcorn does not guarantee you any minimum amount of Promotions or that you will derive any minimum amount of income through the Platform.
Podcorn does not assess the performance of Podcasters, and does not oversee the performance of the Promotion Agreements or instruct the Podcaster as to how the Promotion Agreements will be performed.
Podcorn does not pay a salary or hourly rate but rather facilitates payment of the rate set by the Brand Advertiser.
Podcorn does not direct or control Podcasters generally or in their performance under these Podcaster Terms of Use specifically, including in connection with performance of Promotion Agreements.
Podcorn does not provide training, tools, equipment, benefits, or expense reimbursement to Podcasters.
Podcorn does not dictate the time of performance of the Promotion Agreements, and you retain the option to accept, decline, or ignore Promotions.
Podcorn does not combine its business operations in any way with your business, but instead maintains its operations as separate and distinct.
You are responsible for obtaining and maintaining any required registration, licenses, or other authorization necessary for the services you render.
Without limiting the generality of the foregoing:
Benefits and Contributions. You are not entitled to or eligible for any benefits that Podcorn, its parents, subsidiaries, affiliates or other related entities may make available to their employees, such as group insurance, profit-sharing or retirement benefits. Podcorn will not withhold or make payments for social security, make unemployment insurance or disability insurance contributions, or obtain workers’ compensation insurance on your behalf. If, notwithstanding the foregoing, you are classified as an employee of Podcorn, or any affiliate of Podcorn (“Affiliate”), by the U.S. Internal Revenue Service (“IRS”), the U.S. Department of Labor (“DOL”), or any other federal, state or foreign court or agency, you agree that you will not, as the result of such reclassification, be entitled to or eligible for, on either a prospective or retrospective basis, any employee benefits under any plans or programs established or maintained by either the Customer and its parents, subsidiaries, affiliates or related entities or by Podcorn, its parents, subsidiaries, affiliates or other related entities.
Taxes. You are solely responsible for filing all tax returns and submitting all payments as required by any federal, state, local, or foreign tax authority arising from payments to you under these Podcaster Terms of Use, and you agree to do so in a timely manner. You will comply with all applicable federal, state, local, and foreign laws governing self-employed individuals, including laws requiring the payment of taxes, such as income and employment taxes, and social security, disability and other contributions. To the extent required by the IRS, Podcorn will report the payments paid to you under Promotion Agreements by filing Form 1099-MISC with IRS. You consent to electronic delivery of Form 1099-MISC, if such form is required or filed. You agree to indemnify Podcorn for the cost of any tax liabilities incurred by Podcorn as a result of your failure to pay all applicable taxes in a timely manner.
Facilitated Payments Withholding Consent
If Podcorn facilitates the transmission of any payments from the Brand Advertiser to you in connection with a Promotion Agreement (each, a “Facilitated Payment”), Podcorn may in its sole discretion withhold from any such Facilitated Payment any amounts that are payable to Podcorn by the applicable Brand Advertiser in connection with that Promotion Agreement. Podcorn is not your trustee or fiduciary in respect of any Facilitated Payments or any Promotion Agreements. Podcorn reserves the right, at its sole discretion, to place a hold on a Facilitated Payment if Podcorn determines that the funds may be subject to a breach of applicable law (e.g. fraud or money laundering), or if Podcorn is required to cooperate with law enforcement
Off-Platform Agreements Prohibited
Neither you nor your agents or affiliates will directly or indirectly enter into an agreement for the creation of any Promotional Content with a Brand Advertiser that you contacted or connected with through the Platform except for Promotion Agreements for which Podcorn will receive a fee as provided for thereunder. Podcorn reserves the right, in its sole discretion, to ban Podcasters that engage in such prohibited agreements. Podcorn will not be responsible and bears no liability for the consequences of any such prohibited agreements.
Reviews and Comments
By submitting content to the Platform or Podcorn, including any Brand Advertiser or Promotion reviews, questions, comments, suggestions, ideas or similar information (collectively, “Submissions”), you grant Podcorn and its affiliates, a worldwide, nonexclusive, royalty-free, perpetual, transferable, irrevocable and fully sublicensable right to (a) use, reproduce, modify, adapt, translate, distribute, publish, create derivative works from and publicly display and perform such Submissions throughout the world in any media, now known or hereafter devised; and (b) use the name that you submit in connection with such Submission. You acknowledge that Podcorn may choose, but is not required, to provide attribution of your Submissions (for example, listing your name and city on a Brand Advertiser or Promotion review that you submit) at our discretion, and that such submissions may be shared with Brand Advertisers and others using our Platform. You further grant Podcorn the right to pursue at law any person or entity that violates your or Podcorn’s rights in the Submissions by a breach of these Podcaster Terms of Use. You acknowledge and agree that Submissions are non-confidential and non-proprietary.
Podcorn takes no responsibility and assumes no liability for any Submissions posted or submitted by you. Podcorn has no obligation to post your Submissions and reserves the right, in its absolute discretion to determine which Submissions are published on the Platform. If you do not agree to these Podcaster Terms of Use, please do not provide us with any Submissions.
You are fully responsible for your Submissions, specifically including, but not limited to, reviews posted to the Platform. You acknowledge that Podcorn may exercise its rights (e.g. use, publish, delete) to use any Submissions without any notice to you.
Ownership
All Content, including (without limitation) all designs, infrastructure graphics, pictures, illustrations, software, artwork, video, music, sound, names, words, titles, phrases, logos and marks displayed on the Platform, are owned or licensed by Podcorn and are protected by copyright, trade-mark and other intellectual property laws.
Podcorn expressly reserves all rights in the Platform and all materials provided by Podcorn in connection with these Podcaster Terms of Use that are not specifically granted to you. You acknowledge that all right, title and interest in the Platform, all materials provided by Podcorn in connection with these Podcaster Terms of Use (including the Content), and any update, adaptation, translation, customization or derivative work thereof, and all intellectual property rights therein will remain with Podcorn (or third party suppliers, if applicable), and that the Platform and all materials provided by Podcorn hereunder are licensed and not “sold” to you.
All contents of the Podcorn website are: © 2021 Podcorn Media, Inc.
With respect to the content or other materials you upload through the Platform or share with other users or recipients (collectively, “User Content”), you represent and warrant that you own all right, title and interest in and to such User Content, including, without limitation, all copyrights and rights of publicity contained therein. By uploading any User Content you hereby grant and will grant Podcorn and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify and otherwise use your User Content in connection with the operation of the Service or the promotion, advertising or marketing thereof, in any form, medium or technology now known or later developed.
Copyright Complaints
Podcorn respects the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify Podcorn of your infringement claim in accordance with the procedure set forth below.
Podcorn will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to Podcorn’s Copyright Agent at support@podcorn.com (Subject line: “DMCA Takedown Request”). You may also contact us by mail at:
407 Maple Drive, Beverly Hills, CA 90210
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- a description of the copyrighted work or other intellectual property that you claim has been infringed;
- a description of where the material that you claim is infringing is located on the Service, with enough detail that we may find it on the Service;
- your address, telephone number, and email address; a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law;
a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
Counter-Notice
If you believe that your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to upload and use the content in your User Content, you may send a written counter-notice containing the following information to the Copyright Agent:
- your physical or electronic signature;
- identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
- a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
- your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court located within Central District of California and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, Podcorn will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.
Repeat Infringer Policy
In accordance with the DMCA and other applicable law, Podcorn has adopted a policy of terminating, in appropriate circumstances and at Podcorn’s sole discretion, users who are deemed to be repeat infringers. Podcorn may also at its sole discretion limit access to the Service and/or terminate the memberships of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
Privacy Policy
Please visit https://podcorn.com/privacy to review our current Privacy Policy, which contains important information about our practices in collecting, storing, using and disclosing your personal information, and which is hereby incorporated into and forms a part of these Podcaster Terms of Use.
Please note that Brand Advertisers may have additional privacy policies or statements that govern their practices in collecting, storing, using and disclosing your personal information. Podcorn has no control over and takes no responsibility for the privacy policies or statements of Brand Advertisers or other third parties. Please read those additional privacy policies or statements carefully.
Data Processing
To the extent that any User Content or other data that Podcorn processes on your behalf contains information that (i) relates to or could reasonably be associated with an individual and (ii) is subject to applicable data protection laws (“Personal Information”), Podcorn will not sell, retain, use, or disclose such Personal Information other than as expressly stated in this Agreement or as necessary to provide the Platform Services.
No Unlawful or Prohibited Use
You shall not, without Podcorn’s prior written permission, use the Platform and the Content for purposes other than the Permitted Use. Without limiting the generality of the foregoing, you shall not, and shall not permit anyone else to:
(a) “frame”, “mirror” or otherwise incorporate the Platform or the Content or any part thereof on any commercial or non-commercial website;
(b) access, monitor or copy any part of the Platform or the Content using any robot, spider, scraper or other automated means or any manual process for any purpose without our express written permission;
(c) violate the restrictions in any robot exclusion headers on the Content or the Platform or bypass or circumvent other measures employed to prevent or limit access to the Platform;
(d) take any action that imposes, or may impose, in Podcorn’s discretion, an unreasonable or disproportionately large load on the Platform;
(e) deep-link to any portion of the Platform for any purpose;
(f) remove (or permit anyone else to remove) any watermarks, labels or other legal or proprietary notices included in any Promotion, the Platform or the Content;
(g) modify or attempt to modify (or permit anyone else to modify or attempt to modify) the Platform or any Promotions, including any modification for the purpose of disguising or changing any indications of the ownership or source of the Platform or a Promotion
(h) use the Platform or any Promotion or Content as part of any service for sharing, lending or multi-person use, or for the purpose of any other institution, except as specifically permitted by an applicable Promotion Agreement and only in the exact manner specified and enabled by therein;
(i) attempt to, assist, authorize or encourage others to circumvent, disable or defeat any of the security features or components, such as digital rights management software or encryption,
that protect the Platform;
(j) copy, reproduce, modify, distribute, transfer, sell, publish, broadcast, perform, transmit, publish, license or circulate in any form any part of the Platform or the Content;
(k) create derivative works based on the Platform or the Content, in whole or in part, or to decompile, disassemble, reverse engineer or other exploit any part of the Platform or the Content;
(l) use of access the Platform in a manner that violates the rights (including, but not limited to intellectual property rights) of any third party; or
(m) upload to or transmit through the Platform any information, images, text, data, media or other Content that is offensive, pornographic, hateful, obscene, defamatory or violates any laws or regulations (including but not limited to criminal laws and FTC regulations), in each case as determined by Podcorn in its sole discretion,
(n) post, upload, publish, submit or transmit any Content that:
(i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy;
(ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability;
(iii) is fraudulent, false, misleading or deceptive;
(iv) is defamatory, obscene, pornographic, vulgar or offensive;
(v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group;
(vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or
(vii) promotes illegal or harmful activities or substances.
You shall be solely liable for any damages resulting from any violation of the foregoing restrictions, or any other harm resulting from your posting of Content to the Platform.
Clear and Prominent Disclosure of Material Connections
With Brand Advertiser
You are required to follow the Federal Trade Commission’s Endorsement Guides. In the event a Brand Advertiser engages you for a Promotion, you understand and agree that you are required to clearly and conspicuously disclose any material connection between you and the Brand Advertiser. Material connections include, but are not necessarily limited to, the Brand Advertiser providing you with something of value, such as monetary compensation or free use of products or services, in exchange for your participation in a Promotion. In general, disclosures should be:
- in clear and unambiguous language;
- provided as close in time as possible to the native ads to which they relate; and
- provided as close in time as possible to the native ads to which they relate; and
As a Podcaster, it is your responsibility to understand and abide by the requirements imposed on you by the FTC and to ensure that a clear and conspicuous disclosure is made each and every time you create Promotion Content.
If Podcorn learns of Promotions you create that do not, in our sole discretion, abide by the FTC endorsement disclosure guides, we may require you to add appropriate disclosures, and we may require you to suspend the Promotion until such disclosures are added. Repeated failure to include appropriate disclosures in your Promotions, or your failure to add disclosures upon request by Podcorn, may result in termination of your Account.
Third Party Websites
The Platform may provide links to third party websites. Podcorn does not endorse the information contained on those web sites or guarantee their quality, accuracy, reliability, completeness, currency, timeliness, non-infringement, merchantability or fitness for any purpose. The content in any linked web site is not under Podcorn’s control, and if you choose to access any such web site, you do so entirely at your own risk.
Viruses
The downloading and viewing of Content is done at your own risk. Podcorn cannot and does not guarantee or warrant that the Platform or the Content are compatible with your computer system or that the Platform or the Content, or any links from the Platform or the Content, shall be free of viruses, worms, trojan horses or disabling devices or other code that manifests contaminating or destructive properties. You are responsible for implementing safeguards to protect the security and integrity of your computer system, and you are responsible for the entire cost of any service, repairs or connections of and to your computer system that may be necessary as a result of your use of the Platform
Communications Not Confidential
Podcorn does not guarantee the confidentiality of any communications made by you through the Platform. Although Podcorn generally adheres to the accepted industry practices in securing the transmission of data to, from and through the Platform, you understand, agree and acknowledge that Podcorn cannot and does not guarantee the security of data transmitted over the Internet or public networks in connection with your use of the Platform or any Promotions.
DISCLAIMER AND LIMITATION OF LIABILITY
THE PLATFORM AND THE CONTENT ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. USE OF THE PLATFORM OR THE CONTENT IS AT YOUR OWN RISK. PODCORN DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS ABOUT THE QUALITY, ACCURACY, RELIABILITY, COMPLETENESS, CURRENCY, OR TIMELINESS OF THE PLATFORM OR THE CONTENT. THE PLATFORM AND THE CONTENT MAY INCLUDE ERRORS, OMISSIONS AND INACCURACIES, INCLUDING, WITHOUT LIMITATION, PRICING ERRORS. PODCORN DOES NOT ASSUME ANY RESPONSIBILITY FOR ANY ERRORS, OMISSIONS OR INACCURACIES IN THE PLATFORM OR THE CONTENT. IN ADDITION, PODCORN EXPRESSLY RESERVES THE RIGHT TO CORRECT ANY PRICING ERRORS ON THE PLATFORM.
PODCASTER AND PROMOTION REVIEWS DISPLAYED ON THE SITE ARE INTENDED AS ONLY GENERAL GUIDELINES, AND PODCORN DOES NOT GUARANTEE THE ACCURACY OF THE REVIEWS. PODCORN MAKES NO GUARANTEES ABOUT THE AVAILABILITY OF SPECIFIC PODCASTERS, PROMOTIONS OR TYPES OF PROMOTIONS.
TO THE FULLEST EXTENT PERMITTED BY LAW, PODCORN DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS OF ANY KIND WITH RESPECT TO THE PLATFORM AND THE CONTENT WHETHER EXPRESS, IMPLIED, STATUTORY OR COLLATERAL, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OR THAT THE PLATFORM OR THE CONTENT ARE OR WILL BE ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION. IN NO EVENT WILL PODCORN BE LIABLE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY, FOR ANY DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, LOST PROFITS, LOSS OF USE, LOSS OF DATA, PERSONAL INJURY, FINES, FEES, PENALTIES OR OTHER LIABILITIES), WHETHER OR NOT PODCORN IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, RESULTING FROM OR RELATED TO THE USE OF, OR THE INABILITY TO MAKE USE OF, THE PLATFORM OR THE CONTENT OR ANY PROMOTION AGREEMENT.
PODCASTERS MARKETING THEIR SERVICES THROUGH THE PLATFORM ARE INDEPENDENT ORGANIZATIONS AND NOT CONTRACTORS, AGENTS OR EMPLOYEES OF PODCORN. PODCORN IS NOT LIABLE FOR THE ACTS, ERRORS, OMISSIONS, REPRESENTATIONS, WARRANTIES, BREACHES OR NEGLIGENCE OF ANY PODCASTERS OR FOR ANY PERSONAL INJURIES, DEATH, PROPERTY DAMAGE, OR OTHER DAMAGES OR EXPENSES RESULTING THEREFROM AND TAKES NO RESPONSIBILITY WHATSOEVER FOR PROMOTIONS CREATED BY PODCASTERS.
TO THE EXTENT THAT THE FOREGOING LIMITATION DOES NOT APPLY, IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF PODCORN IN CONNECTION WITH OR UNDER THESE BRAND ADVERTISER TERMS OF USE, INCLUDING FROM A PROMOTION AGREEMENT, OR YOUR USE OF, OR INABILITY TO MAKE USE OF, THE PLATFORM OR THE CONTENT, OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO A PROMOTION AGREEMENT, OR YOUR USE OF, OR INABILITY TO MAKE USE OF, THE PLATFORM OR THE CONTENT EXCEED ALL FEES PODCORN HAS COLLECTED FROM YOU UNDER THESE BRAND ADVERTISER TERMS OF USE IN THE PRECEDING 12 MONTHS OR THE EQUIVALENT IN LOCAL CURRENCY. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THESE BRAND ADVERTISER TERMS OF USE WILL NOT INCREASE THE MAXIMUM LIABILITY AMOUNT.
Limitations Period. YOU AND PODCORN AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THESE Promotion Terms of Use, THE PODCORN WEBSITE, THE SERVICES OR THE PROMOTIONS MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
The limitations above reflect the allocation of risk between the parties. The limitations specified in this section will survive and apply even if any limited remedy specified in these terms is found to have failed of its essential purpose.
Indemnification
You shall defend, indemnify and hold harmless Podcorn and all of its officers, directors, employees and agents from and against any claims, causes of action, demands, recoveries, losses, damages, fines, penalties or other costs or expenses of any kind or nature including but not limited to reasonable legal and accounting fees, brought in connection with or as a result of:
(a) your breach of any of your warranties, representations or obligations under these Brand Advertiser Terms of Use or any documents referenced herein;
(b) your violation of any law (including, without limitation, any FTC regulation or guideline) or the rights of a third party (including, without limitation, intellectual property rights);
(c) your use of the Platform;
(d) breach of or failure to perform under any Promotion Agreement by you or by any third party acting on your behalf or with your permission; or (d) the use of any media content created by Podcasters, you or third parties in connection with a Promotion by you, Podcasters, or by any third party acting on your behalf or with your permission.
Geographic Application of the Platform
Not all of the Podcasters, Promotions and services described on the Platform are available in all jurisdictions. Furthermore, nothing on the Platform constitutes an offer or solicitation to buy or sell any product or service to anyone in any jurisdiction in which such an offer or solicitation is prohibited by law.
Governing Law
These Brand Advertiser Terms of Use and any action related thereto shall be governed by the laws of the State of California without regard to its conflict of laws provisions. These laws apply to your access to or use of the Platform or the Content, notwithstanding your domicile, residency or physical location. The Platform and the Content are intended for use only in jurisdictions where they may lawfully
be offered for use.
Except as restricted by applicable law, you hereby consent to the exclusive jurisdiction and venue of the state and federal courts located in Los Angeles County, California in all disputes arising out of or relating to the use of the Platform or the Content.
Entire Agreement, Waiver and Severability
These Brand Advertiser Terms of Use constitute the entire agreement between Podcorn and you pertaining to the subject matter hereof and supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and Podcorn with respect to the Platform. A printed version of these Brand Advertiser Terms of Use and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Brand Advertiser Terms of Use to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
Podcorn’s failure to insist upon or enforce strict performance of any provision of these Brand Advertiser Terms of Use shall not be construed as a waiver of any provisions or right. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Podcorn. Except as expressly set forth in these Brand Advertiser Terms of Use, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Brand Advertiser Terms of Use or otherwise.
If for any reason a court of competent jurisdiction finds any provision of these Brand Advertiser Terms of Use invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Brand Advertiser Terms of Use will remain in full force and effect.
If any of the provisions contained in these Brand Advertiser Terms of Use conflict with the terms of another agreement between the parties (such as the terms of a Promotion Agreement in respect of a Promotion), then these Brand Advertiser Terms of Use shall prevail; provided that, if you are also a Brand Advertiser registered on the Platform, the Brand Advertiser Terms of Use applicable to Brand Advertisers will govern your relationship with Podcorn in that respect.
It is the express wish of the parties that these Brand Advertiser Terms of Use and all related documents be written in English.