THESE POD AUTHORITY DIRECTORY TERMS OF SERVICE FOR SUBMITTING PODCASTS (“Terms”) SET FORTH THE TERMS APPLICABLE TO YOU BROADCASTING OR DISTRIBUTING YOUR AUDIO CONTENT (“Feed”) THROUGH PROPRIETARY ONLINE SERVICES AND SOFTWARE APPLICATIONS (“Service”) OFFERED BY NEW POD CITY, LLC. (“New Pod City”) WHERE YOU RETAIN THE RIGHT AND ABILITY TO CONTROL YOUR TRANSMISSIONS AND DISTRIBUTIONS. BY CHECKING THE BOX PROVIDED ON THE WEBPAGE WHERE YOU SIGN UP TO PROVIDE YOUR FEED TO THE SERVICE (“Sign-Up Page”), YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO THESE TERMS. IF YOU ARE ENTERING INTO THESE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, THEN YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THAT COMPANY OR OTHER LEGAL ENTITY, THAT SUCH COMPANY OR LEGAL ENTITY WILL BE BOUND BY THESE TERMS, AND ALL REFERENCES TO “YOU” IN THESE TERMS WILL APPLY TO THE COMPANY OR LEGAL ENTITY. THIS PREAMBLE IS INCORPORATED INTO AND MADE A PART OF THESE TERMS.
1. SCOPE OF AGREEMENT.
These Terms govern your use of the Service to make available the transmissions or distributions of your Feed, and any sound recordings and musical works or other content embodied therein (collectively, “Feed Content”), to New Pod City's audience of listeners (“End Users”), which audience may be the entire universe or limited to those territories as determined by New Pod City or by law. By entering into these Terms, you hereby agree that your Feed may be included in New Pod City's directory of radio stations, podcasts and other online content (the “Directory”), for users throughout the universe or restricted to certain territories as determined by New Pod City or by law.
2. SERVICE; PROPRIETARY RIGHTS; GRANT OF RIGHTS.
(a) License to Service. Subject to the terms and conditions of these Terms, New Pod City grants you a non-exclusive, non-transferable, non-sub-licensable, revocable and limited license to access and use the Service for the purpose of making the submission on and through your Feed available to End Users.
(b) Restrictions on Use of Service. In connection with your use of the Service, you will comply with all applicable laws, rules and regulations. You will not, and will not permit any third party to: (a) copy, modify, translate, or create derivative works of the Service or the Directory; (b) reverse engineer, decompile, disassemble or otherwise attempt to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques, or algorithms of the Service or the Directory; (c) lend, lease, offer for sale, sell or otherwise use the Service or the Directory for the benefit of third parties; or (d) attempt to circumvent any license, timing or use restrictions that are built into the Service or the Directory.
(c) No Guarantee of Inclusion in the Directory. New Pod City reserves the right, in its sole discretion, to exclude, remove or block access to your Feed, including all Feed Content, and/or your Marks (defined below) from the Service and the Directory at any time, for any or no reason, without notice or liability to you. New Pod City may exclude your Feed from access within certain territories, including by excluding your Feed from appearing within the Directory within certain territories. By exercising such rights New Pod City assumes no liabilities for transmissions or distributions made by you through the Feed within any territory and exercises no right or ability to control your Feed.
(d) Ownership of Service. Except for the limited rights granted in Section 2(a) above, New Pod City retains all right, title, and interest, including all intellectual property rights, in and to the Service and the Directory, including all enhancements, modifications and derivatives thereto. You agree to use the Service solely as authorized in these Terms. You further acknowledge that the license granted pursuant to these Terms is not a sale and does not transfer to you title or ownership of the Service or a copy of the Service, but only a right of limited use. ALL RIGHTS NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED TO NEW POD CITY.
(e) License to Your Marks. You grant New Pod City and its agents, subsidiaries, affiliates, licensees, successors, and assigns a sublicensable, royalty-free, nonexclusive, worldwide and fully paid-up license to reproduce, distribute, publicly display, publicly perform, transmit, communicate to the public, resize, and otherwise use and exploit (collectively “Use”) during the term of these Terms any of your slogans, logos, trademarks, and/or service marks (collectively, “Marks”) that you upload to the Sign-Up Page or otherwise make available to New Pod City, to advertise, market and promote your Feed and the availability of your Feed on or off of the Service in any and all media now known or hereafter devised. New Pod City will Use your Marks in accordance with any reasonable guidelines or other instructions that you enter into the fields provided on the Sign-Up Page.
(f) Ownership of Your Marks. Subject to the license you grant to New Pod City above, you retain all right, title, and interest in and to your Marks, and all intellectual property rights embodied therein.
(g) Advertising. You hereby authorize New Pod City to sell advertising, sponsorships, and promotions, either directly or through third parties, to be displayed or performed before, during or after any transmissions of Feed Content on or through your Feed. By way of example and not limitation, New Pod City may run pre- and post-roll advertising prior to the commencement or termination of transmissions from your Feed accessible from the Service, or include display advertising on any software through which your Feed is accessed by an End-User (e.g., through a website player or a mobile application). You acknowledge and agree that New Pod City will have no obligation to share any portion of advertising revenue generated by New Pod City with you. Notwithstanding the foregoing, nothing herein obligates New Pod City to sell advertising, sponsorships, or promotions to be displayed or performed before, during or after any transmissions of Feed Content on or through your Feed.
(h) Changes to the Service. New Pod City may at its sole discretion and from time to time change, add or remove features and functionality of the Service without any notice to you and without liability to you.
(i) Changes to these Terms. The Service is owned and operated by New Pod City, and New Pod City reserves the right to revise these Terms in an immaterial manner in its sole discretion at any time and without prior notice to you other than by posting the revised Terms on the Service. New Pod City will endeavor to provide prior notice to you of material changes to these Terms. Unless otherwise provided, revisions to these Terms are effective upon posting and your continued use of the Service after a revised version of these Terms has been posted by New Pod City to the Service constitutes your binding acceptance of such revised Terms. These Terms will be identified as of the most recent date of revision, and you should visit this page periodically to ensure your continued compliance with and acceptance of the Terms. Notwithstanding the preceding sentences of this Section 2(i), no revisions to these Terms will apply to any dispute between you and New Pod City that arose prior to the effective date of such revision.
3. REPRESENTATIONS AND WARRANTIES.
You represent and warrant to New Pod City that: (a) any and all Feed Content that you transmit or distribute on or through your Feed or otherwise provide to New Pod City, including, without limitation, your Marks or any information you provide through the Sign-Up Page (collectively, “Your Content”) is owned and/or licensed by you for use on, through or in association with your Feed throughout the universe or such territories for which you assume the responsibility of controlling access by End Users and does not (i) infringe on or violate any intellectual property rights, rights of publicity or privacy, or moral rights of any third party in every territory from which transmissions of your Feed are accessible; or (ii) violate any applicable law or regulation; (b) you have all rights, licenses and permissions necessary for you to perform, transmit, communicate to the public, reproduce, distribute and otherwise use and exploit all of Your Content in every territory from which transmissions or distributions of your Feed are accessible; (c) you have the right, power and authority to grant any and all necessary rights and license provided under this Agreement with respect to your Marks; (d) no other licenses, permissions, consents or authorizations must be obtained from or payments made to any other person or entity by New Pod City arising out of New Pod City’s exercise of any rights under this Agreement with respect to your Feed Content; and (e) New Pod City is not required to take any steps to limit access to transmissions or distributions made by you on your Feed in any territory throughout the universe. By way of example and not limitation, if your Feed is only cleared for transmissions or distributions to or within a specific territory but not other territories, then you and you alone are responsible for limiting the territories to which your Feed will be made available. The Directory may identify your Feed in multiple territories but you must implement measures to geo-block the transmission or distribution of your Feed and your Feed Content solely to those territories for which you have obtained all necessary rights.
4. TERM AND TERMINATION.
(a) Term. These Terms are in effect until terminated. Either party may terminate these Terms for convenience. You may terminate these Terms by notifying New Pod City at NewPodCity@gmail.com. We may terminate these terms at any time for any reason upon notice to you.
(b) Effect of Termination. Upon expiration or termination of these Terms for any reason, all licenses granted under these Terms will immediately terminate, and New Pod City will remove your Marks from the Service. Notwithstanding the termination of these Terms, New Pod City may continue to index your Feed in the Directory for purposes of directing an End User to your Feed website or podcast if an End User can otherwise access the Feed directly through a publicly available Uniform Resource Locator or RSS feed.
(c) Survival. All terms and provisions of this Agreement, which by their nature are intended to survive any termination or expiration of these Terms, will so survive.
5. WARRANTY DISCLAIMER.
TO THE EXTENT PERMITTED BY LAW, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SERVICE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND NEW POD CITY HEREBY DISCLAIMS, ON BEHALF OF ITSELF AND ITS SUPPLIERS AND LICENSORS, ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SERVICE, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, TITLE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. NEW POD CITY MAKES NO WARRANTY THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICE WILL MAKE YOUR FEED AVAILABLE ON AN UNINTERRUPTED OR ERROR-FREE BASIS. NEW POD CITY MAKES NO WARRANTY AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICE, THAT ANY DEFECTS IN THE SERVICE WILL BE CORRECTED OR THAT THE SERVICE WILL BE COMPATIBLE WITH ANY OTHER HARDWARE OR SERVICE. NEW POD CITY WILL NOT BE LIABLE FOR ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT THE SERVICE.
6. LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY LAW AND EXCEPT FOR INDEMNIFICATION OBLIGATIONS ARISING UNDER THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN ANY ACTION ARISING FROM OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), INTENDED CONDUCT OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, DAMAGES RELATING TO THE LOSS OF PROFITS, INCOME OR GOODWILL, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR INDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL EITHER PARTY’S LIABILITY FOR MONETARY DAMAGES UNDER THIS AGREEMENT EXCEED ONE HUNDRED DOLLARS ($100).
7. THIRD PARTY DISPUTES.
ANY DISPUTE YOU HAVE WITH ANY THIRD PARTY IN CONNECTION WITH YOUR USE OF THE SERVICE, INCLUDING, WITHOUT LIMITATION, ANY END USER OR THIRD PARTY THAT OWNS OR CONTROLS INTELLECTUAL PROPERTY, WHETHER IN WHOLE OR IN PART, TRANSMITTED OR DISTRIBUTED ON YOUR FEED, IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE NEW POD CITY (AND OUR OFFICERS, DIRECTORS, AGENTS, SUBSIDIARIES, JOINT VENTURES, AND EMPLOYEES) FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
You hereby agree to indemnify and hold New Pod City harmless from any claim, action, suit or proceeding made or brought against New Pod City arising out of or related to your breach of any term, covenant, representation or warranty of these Terms or the availability or Use of your Feed or Your Content in the Directory or on or through the Service. New Pod City will use reasonable efforts to notify you of any such claim, action or proceeding for which it seeks an indemnification from you upon becoming aware of it, but if New Pod City is unable to communicate with you in a timely manner because of an inactive e-mail address for you, then your indemnification obligation will continue notwithstanding New Pod City’s inability to promptly contact you. You agree that New Pod City will, at your expense, have sole control over any defense against any claim for which you are obligated to indemnify New Pod City pursuant to this Section 8; provided, however, that you will at all times have the option to participate in any matter or litigation, including, but not limited to, participation through counsel of your own selection, if desired, at your own expense.
9. DISPUTE RESOLUTION.
(a) General. In the interest of resolving disputes between you and New Pod City in the most expedient and cost effective manner, you and New Pod City agree that any dispute arising out of or in any way related to these Terms or your use of the Service will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or in any way related to these Terms or your use of the Service, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND NEW POD CITY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION AND THAT THIS AGREEMENT SHALL BE SUBJECT TO AND GOVERNED BY THE FEDERAL ARBITRATION ACT.
(b) Exceptions. Notwithstanding Section 9.a, nothing in these Terms will be deemed to waive, preclude or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state or local agency if that action is available; (iii) seek injunctive relief in aid of arbitration from a court of competent jurisdiction; or (iv) file suit in a court of law to address an intellectual property infringement claim.
(c) Arbitrator. Any arbitration between you and New Pod City will be governed by the Federal Arbitration Act and the Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting New Pod City. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability or enforceability of this binding arbitration agreement.
(d) Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by mail (“Notice”) or, if a postal address is not available, to the last known email address for such party. New Pod City’s address for Notice is: 247 East Front St, Trenton, NJ 08611, Attn: Principal. The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or New Pod City may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or New Pod City must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor with a monetary award that exceeds the last written settlement amount offered by New Pod City prior to the selection of an arbitrator, then New Pod City will pay you the highest of the following: (A) the amount awarded by the arbitrator, if any; (B) the last written settlement amount offered by New Pod City in settlement of the dispute prior to the arbitrator’s award; or (C) $1,000. Notwithstanding anything in this Agreement to the contrary, and for the avoidance of doubt, the arbitrator can award injunctive relief as a remedy in any arbitration arising under this Section 10.
(e) Fees. If you commence arbitration in accordance with this EULA, then New Pod City will reimburse you for your payment of the filing fee, unless your claim is for more than $1,000 or as set forth below, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Trenton, New Jersey, USA but if the claim is for $1,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse New Pod City for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. Each party agrees that such written decision, and information exchanged during arbitration, will be kept confidential except to the extent necessary to enforce or permit limited judicial review of the award. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
(f) No Class Actions. YOU AND NEW POD CITY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and New Pod City agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
(g) Modifications to this Arbitration Provision. Except as otherwise provided in these Terms, if New Pod City makes any future change to this arbitration provision, other than a change to New Pod City’s address for Notice, then you may reject the change by sending us written notice within 30 days of the change to New Pod City’s address for Notice, in which case this arbitration provision, as in effect immediately prior to the changes you rejected, will continue to govern any disputes between you and New Pod City.
(h) Enforceability. If Section 9.f above is found to be unenforceable or if the entirety of this Section 9 is found to be unenforceable, then the entirety of this Section 9 will be null and void.
10. GOVERNING LAW.
United States federal law and New Jersey state law, excluding its conflicts of law rules, governs these Terms and your use of the Service. Your use of the Service may also be subject to other local, state, national, or international laws. To the extent that any action relating to any dispute hereunder is permitted to be brought in a court of law, such action will be subject to the exclusive jurisdiction of the state and federal courts located in Trenton, New Jersey, and you hereby irrevocably submit to personal jurisdiction in such courts and waive any defense of inconvenient forum.
(b) Independent Contractors. THE RELATIONSHIP BETWEEN THE PARTIES WILL BE THAT OF INDEPENDENT CONTRACTORS. YOU MAY NOT REPRESENT YOURSELF AS AN AGENT OR LEGAL REPRESENTATIVE OF NEW POD CITY FOR ANY PURPOSE WHATSOEVER AND HAVE NO RIGHT TO CREATE OR ASSUME ANY OBLIGATION OF ANY KIND, EXPRESS OR IMPLIED, FOR OR ON BEHALF OF NEW POD CITY IN ANY WAY WHATSOEVER. THIS AGREEMENT WILL NOT CREATE OR BE DEEMED TO CREATE ANY AGENCY, PARTNERSHIP, OR JOINT VENTURE BETWEEN THE PARTIES.
(c) Assignment. You may not assign this Agreement or any rights or obligations hereunder, directly or indirectly, by operation of law or otherwise, without the prior written consent of New Pod City. New Pod City may assign these Terms at any time and for any reason. Subject to the foregoing, these Terms will inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns. Any attempted assignment in violation of this Section will be null and void.
(d) Severability. If any provision of these Terms is held by a court of competent jurisdiction to be contrary to law, then the remaining provisions of these Terms will remain in full force and effect.
(e) Modification and Waiver. No waiver or modification of these Terms will be valid unless made in writing and signed by both parties. The waiver of a breach of any term hereof will in no way be construed as a waiver of any other term or breach hereof.
(f) Headings. The captions and headings in these Terms are intended only for convenience, and will in no event be construed to define, limit or describe the scope or intent of these Terms, or of any provision of these Terms, nor in any way affect the interpretation of these Terms.
(g) Electronic Communication. You hereby authorize New Pod City to communicate with you via email regarding the Service or these Terms.
(h) Interpretation. You hereby expressly waive any rule of law or legal decision that would require the interpretation of ambiguities in this Agreement against New Pod City as the drafting party of these Terms.
(i) Entire Agreement. These Terms supersede any previous or contemporaneous communications, whether oral or written, express or implied, and embody the entire agreement of the parties regarding your use of the Service to transmit or distribute your Feed to End Users.