Terms of Service
Podpal offers a variety of podcast hosting, distribution, and management solutions through a singlesoftware-as-a-service platform. Our platform and solutions (collectively, the “Service”) is designed tohelp Customers manage the end-to-end process of planning, publishing, and promoting podcastcontent. We offer users a medium for publishing digital audio and video content owned and/or createdby them, as well as tools for productivity, team collaboration, organization, and analytics. The Service ismade available online through the Podpal company website at www.podpal.com.
We know that legal documents can be confusing, so we’ve tried to keep things as clear as possible, butsometimes our lawyers insist on using “legal speak.” If you have any questions, please email our teamat legal@podpal.com. We’re here to help.
1. Overview
1.1 Parties to the Agreement
This Podpal Terms of Service (“Agreement”) is entered into by and between Podpal, Inc. (“Podpal,”“we,” “our”) and the entity or person placing an order for or accessing the Service (“Customer,” “User,”or “you”). This Agreement is made up of the terms and conditions set forth below and any Orders. If you are accessing or using the Service on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to “you” reference your company.
1.2 Effective Date
The “Effective Date” of this Agreement is the date which is the earlier of (a) Customer’s initial access tothe Service through any online provisioning, registration or order process or (b) the effective date of thefirst Order. This Agreement will govern Customer’s initial purchase on the Effective Date as well as anyfuture purchases made by Customer.
1.3 Modifications to Agreement
From time to time, Podpal may modify this Agreement. Unless otherwise specified by Podpal,modifications become effective for Customer upon renewal of Customer's current Subscription Term (asdefined below) or entry into a new Order. Podpal will use reasonable efforts to notify Customer of thechanges through communications via Customer's account, email or other means. Customer may berequired to click to accept or otherwise agree to the modified Agreement before renewing a Subscription Term or entering into a new Order, and in any event continued use of the Services afterthe updated version of this Agreement goes into effect will constitute Customer's acceptance of suchupdated version. Additional terms regarding modifications are provided in Section 19.
1.4 Acknowledgement
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING ANYSERVICES, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS, AND NOTICESCONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THISAGREEMENT, PLEASE DO NOT USE ANY SERVICES. FOR CLARITY, EACH PARTY EXPRESSLYAGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT. THIS AGREEMENTCONTAINS MANDATORY ARBITRATION PROVISIONS THAT REQUIRE THE USE OFARBITRATION TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS. PLEASE READ ITCAREFULLY.
2. The Service
2.1 Permitted Use
During the Subscription Term, Customer may access and use the Service only for its internal business orpersonal purposes in accordance with the Documentation and this Agreement, including any usagelimits in an Order.
2.2 Users
Podpal has three different types of Users depending on the products used:
- We call users of the Websites “Site Visitors.”
- We call Users who use the free version of the Service “Free Users.” While Free Users can access and use the Service, they have access to a more limited set of Service features and functionality than Subscribers.
- We call Users who use the Service as part of a paid Podpal subscription plan “Subscribers” (regardless of the subscription tier). The Service features and functionalities available to Subscribers are determined by the subscription tier and the specific terms agreed to between Podpal and you or your organization (e.g. you, your employer, or another entity or person).
We refer to all types of users collectively as “Users” or “you”. Only Users may access or use the Service. Each User must keep their login credentials confidential and not share them with anyone else. Customer is responsible for its Users’ compliance with this Agreement and actions taken through their accounts (excluding misuse of accounts caused by Podpal’s breach of this Agreement).
Customer will promptly notify Podpal if it becomes aware of any compromise of its User login credentials. Podpal maintains and uses User account information as described in its Privacy Policy.
2.3 Administrators
Customer may designate a User as an administrator with control over Customer’s Service account, including management of Users and Customer Content, as described in the Documentation. Customer is fully responsible for its choice of administrators and any actions they take.
2.4 Customer Affiliates
Customer’s Affiliates may use the Service as Users of Customer. Alternatively, an Affiliate of Customer may enter its own Order(s) as mutually agreed with Podpal, and this creates a separate agreement between the Affiliate and Podpal that incorporates this Agreement with the Affiliate treated as “Customer.” Neither Customer nor any Customer Affiliate has any rights under each other’s agreement with Podpal, and breach or termination of any such agreement is not breach nor termination under any other.
2.5 Sharing Settings
Through the Service you control who you share Podcast Projects with (including making Episodes of Podcast Projects public). Podpal has no liability for how others may access or use Customer Content as a result of your or your Users’ decision to share a Podcast Project.
2.6 Age Requirement for Users
The Service is not intended for, and may not be used by, anyone under the age of 18. Individuals 13 to 17 years of age may only use the Service with parental/guardian consent. Individuals under the age of 13 may not use the software under any circumstances. By using the Services, you state that you are the person whose name and other information have been provided for the Account in use. We do not knowingly collect or solicit personal information from children under 13. If we learn we have collected personal information from a child under 13, we will delete that information. If you believe that a child under 13 may have provided us personal information, please contact us at privacy@podpal.com.
2.7 Parental/Guardian Consent
In cases where you have consented to and authorized a minor between the ages of 13 to 17 to use the Services, you are fully responsible for the online conduct of the minor, controlling the minor’s access to and use of the Services, the consequences of any misuse by the minor, and any problem caused by the use of the Services or by your child’s viewing any part of our Website.
2.8 Restrictions
Customer will not (and will not permit anyone else to) do any of the following: (a) provide access to, distribute, sell or sublicense the Service to a third party, (b) use the Service on behalf of, or to provide any product or service to, third parties, (c) use the Service to develop a similar or competing product or service, (d) scrape, data mine, reverse engineer, decompile, disassemble or seek to access the source code or non-public APIs to or unauthorized data from the Service, except to the extent expressly permitted by Law (and then only with prior notice to Podpal), (e) modify or create derivative works of the Service or copy any element of the Service (other than authorized copies of the Software), (f) remove or obscure any proprietary notices in the Service or otherwise misrepresent the source of ownership of the Service, (g) publish benchmarks or performance information about the Service, (h) interfere with the Service’s operation, circumvent its access restrictions or conduct any security or vulnerability test of the Service, (i) transmit any viruses or other harmful materials to the Service, (j) allow Users to share User seats, (k) engage in any fraudulent, misleading, illegal or unethical activities related to the Service or (l) use the Service to store or transmit material which contains illegal content.
2.9 Trademarks
All trademarks that appear throughout the Services belong to the respective owners of such marks, and are protected by U.S. and/or international trademark laws where they are registered. Any use of any of the marks appearing throughout the Services without the express written consent of Podpal, or the owner of the mark, as appropriate, is strictly prohibited. Please read our Trademark Policy for more details.
3. Support
During the Subscription Term, Podpal will provide Support in accordance with the Support Policy.
4. Customer Content
4.1 Data Use
Customer grants Podpal the right to use, copy, store, aggregate, reproduce, distribute, transmit and display Customer Content and to modify and create derivative works of Customer Content (for reformatting or other technical purposes), as necessary to provide the Service, Support and any Technical Services to Customer under this Agreement. This license is irrevocable, worldwide, royalty-free, sublicensable (through multiple tiers) and transferable.
You agree that this license includes, without limitation, the right for Podpal to provide, promote, and improve the Services. If you elect to use our publishing and distribution Services, we will also use this license to make Content available to other companies, organizations or individuals for the syndication, broadcast, distribution, transmission or publication of such Content on other media and services.
4.2 Security
Podpal uses reasonable technical and organizational measures designed to protect the Service and Customer Content as described in the Security Policy.
4.3 Data Export
During the Subscription Term or within 30 days thereafter, Customer may export their Customer Content via a 301 Redirect request. Upon request, the Customer’s RSS Feed data will be sent to another podcast hosting provider of the Customer’s choice. Podpal will have 60 days to respond to and complete the 301 Redirect on behalf of the Customer. After the data export is completed, Podpal may delete Customer Content in accordance with its standard schedule and procedures.
4.4 Account Deletion
f Customer elects to proactively delete its account at any time, or if the account is deleted due to breaches of this Agreement, all associated Customer Content will be deleted permanently and cannot be retrieved.
4.5 User Content
All Customer Content is the sole responsibility of the User (person or entity) from which such Content originated. This means that you, and not Podpal, are entirely responsible for all Content that you upload, post, email, or otherwise disseminate or transmit via the Services. You agree that: (a) You own all rights, title, and interest in and to the Content that are necessary for your use of the Content in the Services and the manner in which you are using it. (b) You will not use the Services in relation to any activity that would violate any law, rule or regulation, including, but not limited to, those relating to privacy or data protection. (c) The Content complies in all manners with the Prohibited Conduct policy set forth in Section 5.3 as well as our Community Guidelines.
4.6 Objectionable or Inaccurate Content
Podpal does not guarantee the accuracy, integrity, legality or quality of Content. The Content provided by Users on or through the Services may contain inaccurate, inappropriate, incomplete, untruthful, offensive, indecent, or objectionable material for which Podpal assumes no responsibility. You acknowledge and bear all risk associated with your use or consumption of any Content made accessible through the Services, including any reliance on the accuracy, completeness, or usefulness of such Content. Under no circumstances will Podpal be held liable for any Content, including, but not limited to, any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content.
4.7 Removal of Content
Podpal does not prescreen or review Content in the general course of business. Podpal may, however, reject, refuse to post, remove, or block access to any Content, at any time and without notice, for any reason or no reason, and without liability. Additionally, we may notify you if we determine that any of your Content is inappropriate or does not comply with this Agreement, any posted policies, or applicable laws.
4.8 Podpal-Authored Advertising in User Content
If you are on a “Paid Subscription,” Podpal does not advertise the Service or third-party services in your content without your express consent. Podpal does not place advertisements for the Service into your Content, nor does it place the advertisements of the products or services of third-parties paying Podpal.
If you are on a “Free Subscription,” Podpal may advertise the Service in your Content. If you are using our Free Subscription option, you agree that Podpal may insert advertisements into your Content, or to add its logo to your Podpal public profiles, and/or podcast artwork.
4.9 User-Authored Advertising in User Content
Users are permitted to include third-party advertisements in their Content for monetization purposes, and are wholly responsible for soliciting, managing, and supervising these sponsorships. All User-authored advertising must comply with the terms of Section 4 and 5 of this Agreement. Podpal does not take a revenue share of any advertising you include in your Content. If you have a license for third-party Advertisement Services, the fees for utilizing those Services (including any applicable revenue share) and the specific terms governing the placement of advertisements in your Content are as set forth by the third-party provider.
5. Customer Obligations
5.1 Generally
Customer is responsible for its Customer Content, including its content and accuracy, and agrees to comply with Laws in using the Service. Customer represents and warrants that it has made all disclosures and has all rights, consents and permissions necessary to use its Customer Content with the Service and grant Podpal the rights in Section 4.1 (Data Use), all without violating or infringing Laws, third-party rights (including intellectual property, publicity or privacy rights) or any terms or privacy policies that apply to the Customer Content.
5.2 Prohibited Uses
Customer must not use the Service with Prohibited Data or for High-Risk Activities. Customer acknowledges that the Service is not intended to meet any legal obligations for these uses, including HIPAA requirements, and that Podpal is not a Business Associate as defined under HIPAA. Notwithstanding anything else in this Agreement, Podpal has no liability for Prohibited Data or use of the Service for High-Risk Activities.
5.3 Prohibited Conduct
In order to comply with our legal obligations and maintain a functional environment for Podpal users, certain activities are prohibited. When using the Service YOU AGREE NOT TO:
- Upload, disseminate, distribute, transmit, engage in, link to, or otherwise display Content that contains or promotes material that is unlawful, harmful, threatening, abusive, harassing, obscene, hateful, exploiting the images of children under 18 years of age, disclosing personal information belonging to children under 18 years of age, libelous or defamatory, intentionally false or deceptive, advocating for the discrimination of a protected group (whether based on race, skin color, sex, religion, nationality, disability, sexual orientation, age, or similar category), advocating for any illegal or regulated activity (including trafficking, use, or abuse of controlled substances or weapons), or that is otherwise highly objectionable to a reasonable person.
- Use another’s podcast as your own.
- Use someone else’s Content without permission.
- Upload any unlawfully recorded conversation.
- Create or maintain a Podpal Website that contains hyperlinks to content that is prohibited by Podpal.
- Use automated means, including spiders, robots, crawlers, or the like to download, extract or otherwise gather data from any Podpal network or database.
- Upload, disseminate, distribute, transmit, link to or otherwise display Content that promotes, facilitates or enables the illegal downloading of videos, music and other copyrighted material, or infringes on any Intellectual Property Rights of any third party.
- Upload, disseminate, transmit, link to or otherwise display Content that contains or causes the downloading of any malicious code that contains or executes any software viruses, worms, Trojan horses, time bombs, logic bombs, keystroke logging, or any other computer codes, files or programs designed to interrupt, destroy, impair or limit the functionality of any computer software, hardware, telecommunications equipment or other device or equipment, or that could otherwise delay, disrupt or damage any software, computers or websites.
- Upload, disseminate, transmit, link to or otherwise display Content that uses a botnet or other automated or manual means of generating fraudulent clicks or impressions or otherwise promotes or attempts to encourage impression, click or engagement behavior solely for the purpose of increasing advertising revenue.
- Employ misleading email addresses or falsify information in the header, footer, return path, or any part of any communication, including emails, transmitted through the Services.
- Transmit, or procure the sending of, any advertising or promotional material without our prior written consent, including any “junk mail”, “chain letter” or “spam” or any other similar solicitation.
- Attack the Services via a denial-of-service attack or a distributed denial-of-service attack.
- Use the Services in any manner that could disable, overburden, damage, or impair the Services or interfere with any other user’s use of the Services, including their ability to engage in real time activities through the Services.
- Use any device, software or routine that interferes with the proper working of the Services.
- Attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Services, the server on which the Services is stored, or any server, computer or database connected to the Services.
- Modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link to, display or in any way exploit any Content from any Podpal database, including, without limitation, by incorporating data from any Podpal database into any email or “white-pages” products or services, whether browser-based, based on proprietary client-site applications, web-based, or otherwise.
- Use or access the Service in any way that violates any applicable federal, state, local or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the U.S. or other countries).
- Impersonate or attempt to impersonate us, our employees, another user, or any other person or entity (including, without limitation, by using e-mail addresses or screen names associated with any of the foregoing).
- Engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Services, or which we determine may harm us or other users of the Services or create exposure to liability.
- Use any manual process to monitor or copy any of the material on the Services or for any other unauthorized purpose without our prior written consent.
- Access the Services after your account or access to it has been terminated.
- Use the Service in any manner that violates the terms and conditions of any applicable Third-Party Integrations.
- Engage in any other action, inaction, or omission that interferes with our ability to comply with our legal obligations or maintain a functional environment for Podpal users.
5.4 Individual User Account Takeover
The Service may contain functionality allowing Customer to convert accounts previously registered by individuals using email addresses from Customer’s domain into User accounts under Customer’s control. Customer represents and warrants that it has all necessary rights and consents to the extent it converts any existing accounts registered using email addresses from Customer’s domain into accounts under Customer’s control.
6. Suspension of Service
Podpal may suspend Customer’s or a User’s access to and use of the Service and related services if Customer breaches Section 2.6 (Age Requirement for Users), Section 2.8 (Restrictions) or Section 5 (Customer Obligations), if Customer’s account is 10 days or more overdue or if Customer’s or User’s actions risk harm to other customers or the security, availability or integrity of the Service. Where practicable, Podpal will use reasonable efforts to provide Customer with prior notice of the suspension. Once Customer resolves the issue requiring suspension to Podpal’s satisfaction, Podpal will promptly restore Customer’s or User’s access to the Service in accordance with this Agreement.
7. Third-Party Platforms
Customer may choose to use the Service with Third-Party Platforms. Use of Third-Party Platforms is subject to Customer’s agreement with the relevant provider and not this Agreement. Podpal does not control and has no liability for Third-Party Platforms, including their security, functionality, operation, availability or interoperability or how the Third-Party Platforms or their providers use Customer Content. If Customer enables a Third-Party Platform with the Service, Podpal may access and exchange Customer Content with the Third-Party Platform on Customer’s behalf.
8. Technical Services
Any purchased Technical Services are as described in the relevant Order. Customer will give Podpal timely access to Customer Materials reasonably needed for the Technical Services, and if Customer fails to do so, Podpal’s obligation to provide Technical Services will be excused until access is provided. Podpal will use Customer Materials only for purposes of providing Technical Services. Any Technical Services deliverables relate to the configuration or use of the Service. Customer may use Technical Services deliverables only as part of its authorized use of the Service, subject to the same terms as for the Service in Section 2 (The Service) and Section 5 (Customer Obligations).
9. Commercial Terms
9.1 Subscription Term
Unless otherwise specified in the applicable Order, each Subscription Term will renew according to the periods specified for monthly and yearly subscriptions:
- Monthly Subscriptions: subscriptions renew for successive 1-month periods, unless either party gives the other party notice of non-renewal at least 15 days before the current Subscription Term ends. Upon notice of non-renewal, Customer will not be charged for the next billing cycle but will not receive any refunds or credits for amounts that have already been charged.
- Yearly Subscriptions: subscriptions renew for successive 12-month periods, unless either party gives the other party notice of non-renewal at least 90 days before the current Subscription Term ends. Upon notice of non-renewal, Customer will not be charged for the next billing cycle but will not receive any refunds or credits for amounts that have already been charged.
9.2 Fees and Taxes
Fees are as described in each Order. Customer will reimburse Podpal for pre-approved travel and lodging expenses it incurs in providing Technical Services. Fees are invoiced on the schedule in the Order and reimbursable expenses are invoiced in arrears. Customer agrees that Podpal may bill Customer’s credit card or other payment method for renewals, expenses and any other unpaid fees, as applicable. Customer may change its payment method information by entering updated information through the user interface of the Service. Unless the Order provides otherwise, all fees and expenses are due within 30 days of the billing date specified in the applicable Order. Fees for renewal Subscription Terms are at Podpal’s then-current rates, regardless of any discounted pricing in a prior Order. Late payments are subject to a service charge of 1.5% per month or the maximum amount allowed by Law, whichever is less. All fees and expenses are non-refundable except as set out in Section 10.2 (Warranty Remedy) and Section 14.4 (Mitigation and Exceptions). Customer is responsible for any sales, use, goods and services, value-added, withholding or similar taxes or levies that apply to its Orders, whether domestic or foreign (“Taxes”), other than Podpal’s income tax. Fees and expenses are exclusive of Taxes.
10. Warranties and Disclaimers
10.1 Limited Warranty
Podpal warrants to Customer that: (a) the Service will perform materially as described in the Documentation and Podpal will not materially decrease the overall functionality of the Service during a Subscription Term (the “Performance Warranty”) and (b) Podpal will perform any Technical Services in a professional and workmanlike manner (the “Technical Services Warranty”).
10.2 Warranty Remedy
If Podpal breaches Section 10.1 (Limited Warranty) and Customer makes a reasonably detailed warranty claim within 30 days of discovering the issue, then Podpal will use reasonable efforts to correct the non-conformity. If Podpal cannot do so within 60 days of Customer’s warranty claim, either party may terminate the affected Order as relates to the non-conforming Service or Technical Services. Podpal will then refund to Customer any pre-paid, unused fees for the terminated portion of the Subscription Term (for the Performance Warranty) or for the non-conforming Technical Services (for the Technical Services Warranty). These procedures are Customer’s exclusive remedy and Podpal’s entire liability for breach of the warranties in Section 10.1. These warranties do not apply to (a) issues caused by misuse or unauthorized modifications, (b) issues in or caused by Third-Party Platforms or other third-party systems or Podpal’s Technical Service contractors, or (c) Trials and Betas or other free or evaluation use.
10.3 Disclaimers
Except as expressly provided in Section 10.1 (Limited Warranty), the Service, Support, Technical Services and all related Podpal services are provided “AS IS”. Podpal and its suppliers make no other warranties, whether express, implied, statutory or otherwise, including warranties of merchantability, fitness for a particular purpose, title or noninfringement. Without limiting its express obligations in Section 3 (Support), Podpal does not warrant that Customer’s use of the Service will be uninterrupted or error-free or that the Service will meet Customer’s requirements, operate in combination with third-party services used by Customer or maintain Customer Content without loss. Podpal is not liable for delays, failures or problems inherent in use of the Internet and electronic communications or other systems outside Podpal’s control. Customer may have other statutory rights, but any statutorily required warranties will be limited to the shortest legally permitted period.
11. Term and Termination
11.1 Term
This Agreement starts on the Effective Date and continues until 90 days after expiration or termination of all Subscription Terms.
11.2 Termination for Cause
Either party may terminate this Agreement (including all Orders) if the other party (a) fails to cure a material breach of this Agreement (including a failure to pay fees) within 30 days after notice, (b) ceases operation without a successor, or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if such a proceeding is instituted against that party and not dismissed within 60 days.
11.3 Termination for Convenience
Either party may terminate this Agreement (including all Orders) at any time for any reason upon 90 days’ notice to the other party, provided (i) Customer will not be entitled to a refund of any pre-paid fees and (ii) if Customer has not already paid all applicable fees for the then-current Subscription Term, any such fees that are outstanding will become immediately due and payable.
11.4 Effect of Termination
Upon expiration or termination of this Agreement or an Order, Customer’s access to the Service and Technical Services will cease, other than limited use of the Service to export Customer Content as described in Section 4.3 (Data Export). At the disclosing party’s request upon expiration or termination of this Agreement, the receiving party will delete all of the disclosing party’s Confidential Information (excluding Customer Content, which is addressed in Section 4.3). Customer Content and other Confidential Information may be retained in the receiving party’s standard backups after deletion but will remain subject to this Agreement’s confidentiality restrictions.
11.5 Survival
These Sections survive expiration or termination of this Agreement: 2.8 (Restrictions), 4.3 (Data Export), 5 (Customer Obligations), 9.2 (Fees and Taxes), 10.3 (Disclaimers), 11.4 (Effect of Termination), 11.5 (Survival), 12 (Ownership), 13 (Limitations of Liability), 14 (Indemnification), 15 (Confidentiality), 16 (Required Disclosures), 20 (General Terms) and 21 (Definitions). Except where an exclusive remedy is provided, exercising a remedy under this Agreement, including termination, does not limit other remedies a party may have.
12. Ownership
Neither party grants the other any rights or licenses not expressly set out in this Agreement. Except for Podpal’s use rights in this Agreement, between the parties Customer retains all intellectual property and other rights in Customer Content and Customer Materials provided to Podpal. Except for Customer’s use rights in this Agreement, Podpal and its licensors retain all intellectual property and other rights in the Service, any Technical Services deliverables and related Podpal technology, templates, formats and dashboards, including any modifications or improvements to these items made by Podpal. Podpal may generate and use Usage Data to operate, improve, analyze and support the Service and for other lawful business purposes. If Customer provides Podpal with feedback or suggestions regarding the Service or other Podpal offerings, Podpal may use the feedback or suggestions without restriction or obligation.
13. Limitations of Liability
13.1 Consequential Damages Waiver
The disclaimer in this Section 13.1 (Consequential Damages Waiver) will not apply to the extent prohibited by Laws. Except for Excluded Claims, neither party (nor its suppliers) will have any liability arising out of or related to this Agreement for any loss of use, lost data, lost profits, failure of security mechanisms, revenues, goodwill, interruption of business or any indirect, special, incidental, reliance or consequential damages of any kind, even if informed of their possibility in advance.
13.2 Liability Cap
Except for Excluded Claims, each party’s (and its suppliers’) entire liability arising out of or related to this Agreement will not exceed in aggregate the amounts paid or payable by Customer to Podpal during the prior 12 months under this Agreement.
13.3 Excluded Claims
“Excluded Claims” means: (a) Customer’s breach of Sections 2.8 (Restrictions) or 5 (Customer Obligations), (b) either party’s breach of Section 15 (Confidentiality) (but excluding claims relating to Customer Content), (c) amounts payable to third parties under Customer’s obligations in Section 14.2 (Indemnification by Customer), (d) either party’s willful misconduct or (e) Podpal’s performance of the Service that results in death, personal injury or damage to tangible property.
13.4 Nature of Claims and Failure of Essential Purpose
The waivers and limitations in this Section 13 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy in this Agreement fails of its essential purpose.
14. Indemnification
14.1 Indemnification by Podpal
Podpal will defend Customer from and against any third-party claim to the extent alleging that the Service, when used by Customer as authorized in this Agreement, infringes a third party’s patent, copyright, trademark or trade secret, and will indemnify and hold harmless Customer against any damages or costs awarded against Customer (including reasonable attorneys’ fees) or agreed in settlement by Podpal resulting from the claim.
14.2 Indemnification by Customer
Customer will defend Podpal from and against any third-party claim to the extent resulting from Customer Content, Customer Materials or Customer’s breach or alleged breach of Section 5 (Customer Obligations), and will indemnify and hold harmless Podpal against any damages or costs awarded against Podpal (including reasonable attorneys’ fees) or agreed in settlement by Customer resulting from the claim.
14.3 Procedures
The indemnifying party’s obligations in this Section 14 are subject to receiving (a) prompt notice of the claim, (b) the exclusive right to control and direct the investigation, defense and settlement of the claim and (c) all reasonably necessary cooperation of the indemnified party, at the indemnifying party’s expense for reasonable out-of-pocket costs. The indemnifying party may not settle any claim without the indemnified party’s prior consent if settlement would require the indemnified party to admit fault or take or refrain from taking any action (other than relating to use of the Service, when Podpal is the indemnifying party). The indemnified party may participate in a claim with its own counsel at its own expense.
14.4 Mitigation and Exceptions
In response to an actual or potential infringement claim, if required by settlement or injunction or as Podpal determines necessary to avoid material liability, Podpal may at its option: (a) procure rights for Customer’s continued use of the Service, (b) replace or modify the allegedly infringing portion of the Service to avoid infringement without reducing the Service’s overall functionality or (c) terminate the affected Order and refund to Customer any pre-paid, unused fees for the terminated portion of the Subscription Term. Podpal’s obligations in this Section 14 do not apply (1) to the extent infringement results from Customer’s modification of the Service or use of the Service in combination with items not specified in the Documentation or provided by Podpal (including Third-Party Platforms), (2) to infringement resulting from Software other than the most recent release provided by Podpal, (3) to unauthorized use of the Service, (4) if Customer settles or makes any admissions about a claim without Podpal’s prior consent, (5) if Customer continues to use the Service (or any element thereof) after being notified of allegedly infringing activity or informed of modifications that would have avoided the alleged infringement or (6) to Trials and Betas or other free or evaluation use. This Section 14 sets out Customer’s exclusive remedy and Podpal’s entire liability regarding infringement of third-party intellectual property rights.
15. Confidentiality
15.1 Definition
“Confidential Information” means information disclosed to the receiving party under this Agreement that is designated by the disclosing party as proprietary or confidential or that should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure. Podpal’s Confidential Information includes the terms and conditions of this Agreement and any technical or performance information about the Service. Customer’s Confidential Information includes Customer Content.
15.2 Obligations
As receiving party, each party will (a) hold Confidential Information in confidence and not disclose it to third parties except as permitted in this Agreement, including Section 4.1 (Data Use), and (b) only use Confidential Information to fulfill its obligations and exercise its rights in this Agreement. The receiving party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know (including, for Podpal, the subcontractors referenced in Section 20.9), provided it remains responsible for their compliance with this Section 15 and they are bound to confidentiality obligations no less protective than this Section 15.
15.3 Exclusions
These confidentiality obligations do not apply to information that the receiving party can document (a) is or becomes public knowledge through no fault of the receiving party, (b) it rightfully knew or possessed prior to receipt under this Agreement, (c) it rightfully received from a third party without breach of confidentiality obligations or (d) it independently developed without using the disclosing party’s Confidential Information.
15.4 Remedies
Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone are an insufficient remedy. Each party may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Section 15.
16. Required Disclosures
Nothing in this Agreement prohibits either party from making disclosures, including of Customer Content and other Confidential Information, if required by Law, subpoena or court order, provided (if permitted by Law) it notifies the other party in advance and cooperates in any effort to protect confidential treatment.
17. Trials and Betas
If Customer receives access to the Service or Service features on a free or trial basis or as an alpha, beta or early access offering (“Trials and Betas”), use is permitted only for Customer’s internal evaluation during the period designated by Podpal (or if not designated, 30 days). Trials and Betas are optional and either party may terminate Trials and Betas at any time for any reason. Trials and Betas may be inoperable, incomplete or include features that Podpal may never release, and their features and performance information are Podpal’s Confidential Information. Notwithstanding anything else in this Agreement, Podpal provides Trials and Betas “AS IS” with no warranty, indemnity or support and its liability for Trials and Betas will not exceed US $50.
18. Publicity
Podpal may include Customer and its trademarks in Podpal’s customer lists and promotional materials but will cease this use at Customer’s written request.
19. Modifications to Agreement
Podpal may modify this Agreement (which may include changes to Service pricing and plans) from time to time by giving notice to Customer by email, through the Service, or other means. Unless a shorter period is specified by Podpal (e.g., due to changes in the Law or exigent circumstances), modifications become effective upon renewal of Customer’s current Subscription Term or entry into a new Order. If Podpal specifies that the modifications to the Agreement will take effect prior to Customer’s next renewal or Order and Customer notifies Podpal of its objection to the modifications within 30 days after the date of such notice, Podpal (at its option and as Customer’s exclusive remedy) will either: (a) permit Customer to continue under the existing version of this Agreement until expiration of the then-current Subscription Term (after which time the modified Agreement will go into effect) or (b) allow Customer to terminate this Agreement and receive a refund of any pre-paid Service fees allocable to the terminated portion of the applicable Subscription Term. Customer may be required to click to accept or otherwise agree to the modified Agreement in order to continue using the Service, and, in any event, continued use of the Service after the updated version of this Agreement goes into effect will constitute Customer’s acceptance of such updated version.
20. General Terms
20.1 Assignment
Neither party may assign this Agreement without the prior consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all its assets or voting securities. Any non-permitted assignment is void. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.
20.2 Governing Law, Jurisdiction and Venue
This Agreement is governed by the laws of the State of Georgia and the United States without regard to conflicts of laws provisions and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to this Agreement will be the state and United States federal courts located in Atlanta, Georgia and both parties submit to the personal jurisdiction of those courts.
20.3 Attorneys’ Fees and Costs
The prevailing party in any claim or action to enforce this Agreement will be entitled to recover its reasonable attorneys’ fees and costs in connection with such claim or action.
20.4 Notices
Except as set out in this Agreement, any notice or consent under this Agreement must be in writing and will be deemed given: (a) upon receipt if by personal delivery, (b) upon receipt if by certified or registered U.S. mail (return receipt requested) or (c) one day after dispatch if by a commercial overnight delivery service. If to Podpal, notice must be provided to: Podpal, Inc., 44 Milton Ave, Suite 128, Alpharetta, GA 30009, Attn: Legal Department. All notices to Podpal must include a copy emailed to legal@podpal.com. If to Customer, Podpal may provide notice to the address Customer provided at registration. Either party may update its address with notice to the other party. Podpal may also send operational notices to Customer by email or through the Service.
20.5 Entire Agreement
This Agreement (which includes all Orders and the Policies) is the parties’ entire agreement regarding its subject matter and supersedes any prior or contemporaneous agreements regarding its subject matter. In this Agreement, headings are for convenience only and “including” and similar terms are to be construed without limitation. This Agreement may be executed in counterparts (including electronic copies and PDFs), each of which is deemed an original and which together form one and the same agreement.
20.6 Amendments
Except as otherwise provided herein, any amendments, modifications or supplements to this Agreement must be in writing and signed by each party’s authorized representatives or, as appropriate, agreed through electronic means provided by Podpal. Nonetheless, with notice to Customer, Podpal may modify the Policies to reflect new features or changing practices, but the modifications will not materially decrease Podpal’s overall obligations during a Subscription Term. The terms in any past, contemporaneous or future Customer purchase order, business form or vendor management portal will not amend or modify this Agreement and are expressly rejected by Podpal; any of these documents are for administrative purposes only and have no legal effect.
20.7 Waivers and Severability
Waivers must be signed by the waiving party’s authorized representative and cannot be implied from conduct. If any provision of this Agreement is held invalid, illegal or unenforceable, it will be limited to the minimum extent necessary so the rest of this Agreement remains in effect.
20.8 Force Majeure
Neither party is liable for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) due to events beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, Internet or utility failures, government action, refusal of government license or natural disaster.
20.9 Subcontractors
Podpal may use subcontractors and permit them to exercise Podpal’s rights, but Podpal remains responsible for their compliance with this Agreement and for its overall performance under this Agreement.
20.10 Independent Contractors
The parties are independent contractors, not agents, partners or joint venturers.
20.11 Export
Customer agrees to comply with all relevant U.S. sanctions and foreign export and import Laws in using the Service. Customer (a) represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (b) agrees not to access or use the Service in violation of any U.S. export or economic embargo, prohibition or restriction and (c) will not submit to the Service any information controlled under the U.S. International Traffic in Arms Regulations.
20.12 Open Source
The Software may incorporate third-party open-source software (“OSS”), as listed in the Documentation or by Podpal upon request. To the extent required by the OSS license, that license will apply to the OSS on a stand-alone basis instead of this Agreement.
20.13 Government End-Users
Elements of the Service are commercial computer software. If the user or licensee of the Service is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Service or any related documentation of any kind, including technical data and manuals, is restricted by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Service was developed fully at private expense. All other use is prohibited.
21. Definitions
“Affiliate” means an entity that, directly or indirectly, owns or controls, is owned or controlled by, or is under common ownership or control with a party, where “ownership” means the beneficial ownership of fifty percent (50%) or more of an entity’s voting equity securities or other equivalent voting interests and “control” means the power to direct the management or affairs of an entity.
“Customer Content” means any data, content or materials that Customer (including its Users) creates within or submits to the Service, including from Third-Party Platforms. This includes but is not limited to information, code, data, text, software, music, sound, photographs, pictures, graphics, video, chat, messages, files, websites, podcasts, audio streams or files, mobile properties, and/or any other materials (including transcriptions of the foregoing), whether publicly posted or privately transmitted, hosted or transmitted via the Service.
“Customer Materials” means materials, systems and other resources that Customer provides to Podpal in connection with Technical Services.
“Documentation” means Podpal’s usage guidelines and standard technical documentation for the Service, the current version of which is here.
“High Risk Activities” means activities where use or failure of the Service could lead to death, personal injury or environmental damage, including life support systems, emergency services, nuclear facilities, autonomous vehicles or air traffic control.
“Laws” means all relevant local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer, international communications and export of technical or personal data.
“Order” means any Podpal-provided ordering document, online registration, order description or order confirmation for sales transactions of Podpal subscription plans and white-glove services, or any other order referencing this agreement.
“Podcast” or “Podcasts” means digital audio or video content uploaded to our platform as part of a Podcast Project for publishing and distribution to podcast listening platforms via an RSS feed.
“Podcast Project” means a podcast that is set up in Podpal as a project and managed by an individual or a team of Users that have been invited by a project administrator to join the production team.
“Policies” means the Privacy Policy, Security Policy, Support Policy, DCMA Policy, Community Guidelines, Cookie Policy, Trademark Policy, and any other policy that might be referenced in this Agreement, or added to the Platform from time to time.
“Privacy Policy” means the Podpal Privacy Policy, the current version of which is here.
“Prohibited Data” means any (a) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act (as amended and supplemented) (“HIPAA”), (b) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards (PCI DSS), (c) other information subject to regulation or protection under specific Laws such as the Children’s Online Privacy Protection Act or Gramm-Leach-Bliley Act (or related rules or regulations), (d) social security numbers, driver’s license numbers or other government ID numbers or (e) any data similar to the above protected under foreign or domestic Laws.
“Security Policy” means the Podpal Security Policy, the current version of which is here.
“Service” or “Services” means Podpal’s proprietary cloud service, as identified in the relevant Order and as modified from time to time. The Service includes the Software and Documentation but does not include Technical Services deliverables or Third-Party Platforms.
“Software” means any Podpal client software, scripts, apps, RSS Feeds, Podpal audio players, or other code provided to Customer by Podpal for use with the Service.
“Subscription Term” means the term for Customer’s use of the Service as identified in an Order.
“Support” means support for the Service as described in the Support Policy.
“Support Policy” means the Podpal Support Policy, the current version of which is here.
“Technical Services” means any training, enablement, white-glove service or other technical services provided by Podpal related to the Service, as identified in an Order.
“Third-Party Platform” means any platform, add-on, service, product, app or integration not provided by Podpal that Customer elects to integrate or enable for use with the Service.
“Trademark Policy” means the Podpal Trademark Policy, the current version of which is here.
“Usage Data” means Podpal’s technical logs, data and learnings about Customer’s use of the Service, but excluding Customer Content.
“User” means any individual that Customer or its Affiliate permits or invites to use the Service.
22. Questions & Feedback
If you have any questions about this Agreement, please contact us at legal@podpal.com or visit our Help Center. For your convenience, the other documents that are referred to in this agreement are listed below:
