2. Service Terms and Use License
- Proprietary Rights. The entire contents displayed on the Site and App (the “Content”) have copyright protection as a collective work under the laws of the United States and other copyright laws. We are the sole exclusive owner of the Content. There may be collective work that is the property of other third parties and such collective work is also protected by copyright and other intellectual property laws. You are allowed to display and, subject to any expressly stated restrictions or limitations relating to specific material, download portions of the Content from the different areas of the Site and/or App only for non-commercial use, unless otherwise permitted. Any redistribution, retransmission or publication of any copyrighted material is strictly prohibited without the express written permission of the copyright owner. You may not change or delete any proprietary notices from materials downloaded from the Site or App. You agree not to use any our logo or any other proprietary graphic or trademark without our express written consent. As between the parties, title, ownership rights, and intellectual property rights in the Content, and any copies or portions thereof, shall remain in Podible and/or its content providers. Third-party trademarks, service marks, and logos contained in the Site are owned and licensed by their respective owners. Any and all rights not expressly granted herein are reserved.
- Limited License. Your access to the Service is licensed and not sold. Subject to the terms of this Agreement, you are hereby granted a revocable, non-exclusive, non-transferable account enabling you to access and use the Services and the App and the Site. All Content that is made available to view and/or download in connection with the Site and App is owned by and is the copyrighted work of Podible and/or our suppliers and is licensed, not sold. You do not have the right to lend, lease, rent or sublicense the Site, the App and/or the Content. Your use of the Services (including the use of the materials that you download in connection with the use of the App, along with any documentation, text, software, photos, video, graphics, and music, sound or other multimedia files that might accompany it (collectively, “Material”)) is governed by the terms of this Agreement. We reserve the right, without notice and in our sole discretion, to terminate your license to use the Site, the App, and Services, and to block or prevent future access to and use of the Site, the App, and Services. You are not, and agree that you are not, permitted, directly or indirectly, and the foregoing license grant does NOT include the right for you to:
- modify or copy the Materials or Content or engage in any acts inconsistent with the principles of copyright protection and fair use, as codified in 17 U.S.C. Sections 106-110, without obtaining the express written consent of Podible and/or the copyright owner;
- market, sell or use the Materials, Site or Content for any commercial purpose, or for any public display (commercial or non-commercial);
- attempt to decompile, disassemble or reverse engineer any software contained on the Site;
- remove any copyright or other proprietary notations from the materials;
- publish, distribute, or transfer the Materials to another person or “mirror” the Materials on any other server;
- systematically collect and use of any data or content including the use of any data spiders, robots, or similar data gathering, mining or extraction methods;
- make derivative uses of the Site, the Content or the Material;
- distribute, display (except for the purposes set forth herein), rent, lease, transfer or otherwise transfer rights to, or in any way exploit, the Content or the Material, in whole or in part; or
- use, frame or utilize framing techniques to enclose any portion of the Site, App (including the images found at this Site, App, or any text or the layout/design of any page or form contained on a page).
- Termination of License. This license shall automatically terminate if you violate any of these restrictions and may be terminated by Podible at any time. Upon terminating your viewing of these materials or upon the termination of this license, you must destroy any downloaded materials in your possession whether in electronic or printed format.
- User Account. In order to access the Service, you will be required to register for an Account by allowing us to access your name and other profile information through an existing social media account such as Facebook, Google or Twitter (each a “Social Media Site”, and your Social Media Site profile, the “Social Media Site Profile”) and you may be requested to provide such other information such as your e-mail address. In registering for an Account, you agree to: (i) provide true, accurate, current and complete information about yourself, including, but not limited, to a real and true Social Media Site Profile; and (ii) maintain and promptly update your Account to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or we have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we have the right to suspend or terminate your Account and refuse any and all current or future use of the Services (or any portion thereof).
- Use of the App. You understand and agree that (i) your use of the App is conditioned upon your acceptance of the terms of this Agreement; (ii) the App contains copyrighted material, trade secrets, and other proprietary materials of Podible and its licensors; (iii) you will only use the App to access and/or use the Services; (iv) you will not use any software or services in conjunction with the Service or authorized third-party software which modifies or reroutes, or attempts to modify or reroute, the Service; (v) you will not authorize any third party to access and/or use the Service on your behalf using any automated process such as a BOT, a spider or periodic caching of information stored by the Service on your behalf without a separate written agreement with us; (vi) you will not use any software or hardware that reduces the number of Users directly accessing or using the Service (sometimes called ‘multiplexing’ or ‘pooling’ software or hardware); (vii) you will not lend, lease, rent or sublicense the App; (viii) you will permit us to send and deliver updates and notifications to you as part of your use of the App; (ix) you will allow the App to automatically download and install updates from time to time from us which are designed to improve, enhance and further develop the App and may take the form of bug fixes, enhanced functions, new software modules and completely new versions; and (x) in order to protect those proprietary materials, except as expressly permitted by applicable law, neither you nor a third party acting on your behalf will: (A) decompile, disassemble or reverse engineer the App; (B) modify or create derivative works of the App; (C) use the App in any manner to provide service bureau, commercial time-sharing or other computer services to third parties; (D) transmit the App or provide its functionality, in whole or in part, over the Internet or other network (except as expressly permitted above); (E) sell, distribute, rent, lease, sublicense or otherwise transfer the App to a third party; or (F) use components of the App to run applications not running on the App.
- User Representations. You warrant, represent and agree that you will not use the Site or App in a manner that (i) infringes the intellectual property rights or proprietary rights, or rights of publicity or privacy, of any third party; (ii) violates any law, statute, ordinance or regulation; (iii) you should know is harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, fraudulent, deceptive, or misleading or otherwise objectionable; (iv) adversely affects or reflects negatively on Podible’s goodwill, name or reputation or causes duress, distress or discomfort to us or anyone else, or discourages any person, firm or enterprise from using all or any portion, feature, or function of the Site or App, or from advertising, liking or becoming a supplier to use in connection with the Site or App; (v) send or result in the transmission or junk e-mail, chain letters, duplicative or unsolicited messages, or so-called “spamming”; (vi) transmit, distribute or upload programs or material that contain malicious code, such as viruses, timebombs, cancelbots, worms, trojan horse, spyware, or other potentially harmful programs or other material or information; (vii) falsely report to an employee or agent of Podible; (viii) circumvent, disable or otherwise interfere with security-related features of the Site, the App or its features that prevent or restrict use or copying of any content; (ix) intercept or attempt to intercept email or other private communications not intended for you; and/or (x) causes the Site or App to be used for commercial or business purposes, including, without limitation, advertising, marketing, or offering goods or services, whether or not for financial or any other form of compensation or through linking with any other Site or web pages.
You may from time to time provide us with comments and feedback through the Site and/or App. Any such comments or ratings you provide through the Site and/or App will collectively be referred to as “Feedback”. By providing Feedback to Podible, you automatically grant to Podible a perpetual, royalty-free, non-exclusive, irrevocable, unrestricted, worldwide license to use, copy, sublicense, reproduce, distribute, redistribute, modify, adapt, publish, edit, translate, transmit, create derivative works of, publish and/or broadcast, publicly perform or display any materials or other information (including without limitation, ideas contained therein for new or improved products or services) you submit to us. You further acknowledge and agree that your name and/or likeness may be associated with your Feedback and posted on the Site and/or App and you hereby grant us a perpetual, royalty-free, non-exclusive, irrevocable, unrestricted, worldwide license to use your name and/or likeness in association with your Feedback. You agree that you shall have no recourse against Podible for any alleged or actual infringement or misappropriation of any proprietary right in your communication to us. You further acknowledge and agree that no compensation will be paid with respect to the use of your Feedback, as provided herein, and that Podible may remove any Feedback we post on the Site or through the App at any time in our sole discretion. Further, when you provide Feedback, you authorize and direct Podible to make such copies thereof as Podible deems necessary in order to facilitate the posting and storage of such content on the Site and/or App.
We reserve complete and sole discretion with respect to the operation of the Site and the App. We may, among other things: (a) delete email or private messages if it has not been accessed by a User within the time established by our policies; (b) subject to Section 1, make available to third parties information relating to the Users; and (c) withdraw, suspend or discontinue any functionality or feature of the Site and/or the App. You acknowledge and agree that from time to time the Service may be inaccessible or inoperable for any reason, including, without limitation: (x) equipment malfunctions; (y) periodic maintenance procedures or repairs which we may undertake from time to time; or (z) causes beyond our control or which are not reasonably foreseeable by us.
- General Disclaimer. THE SITE AND THE APP ARE PROVIDED BY PODIBLE ON AN “AS IS” BASIS. PODIBLE MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SITE, THE APP OR THE INFORMATION, CONTENT, MATERIALS, OR PRODUCTS INCLUDED ON THE SITE OR THE APP. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, PODIBLE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND WARRANTIES THAT ACCESS TO OR USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. THERE ARE NO WARRANTIES THAT EXTEND BEYOND THE FACE OF THESE TERMS. PODIBLE CANNOT AND DOES NOT WARRANT AGAINST HUMAN AND MACHINE ERRORS, OMISSIONS, DELAYS, INTERRUPTIONS OR LOSSES, INCLUDING LOSS OF DATA. PODIBLE CANNOT AND DOES NOT GUARANTEE OR WARRANT THAT FILES AVAILABLE FOR DOWNLOADING OR ACCESSING FROM THE SITE OR THE APP WILL BE FREE OF INFECTION BY VIRUSES, WORMS, TROJAN HORSES OR OTHER CODE THAT MANIFEST CONTAMINATING OR DESTRUCTIVE PROPERTIES. PODIBLE DOES NOT WARRANT OR GUARANTEE THAT THE FUNCTIONS OR SERVICE ACCESSED THROUGH THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE SITE OR APP WILL BE CORRECTED. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THESE TERMS. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE, OR WITH ANY OF THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICE. PODIBLE MAY CHANGE THE SERVICE OR THE FEATURES IN ANY WAY, AND AT ANY TIME AND FOR ANY REASON. Although we have attempted to provide accurate information on the Site and App, Podible assumes no responsibility for the accuracy or completeness of the information.
- Informational Purposes Only. Any opinions or Feedback expressed on the Site or the App are the personal opinions of the original author and not of Podible,even though the original author may be employed by Podible. The Content is provided for informational and entertainment purposes only and is not an endorsement or representation by Podible or any other party. Podible does not assume any responsibility or liability for any Feedback, opinion or other commentary posted on the Site, the App or any third party website linked to the Site or App and makes no express or implied warranty or guarantee about the accuracy, copyright compliance, legality, or any other aspect of the Content.
- Disclaimer of Third Party Information. You understand that when using the Site and/or the App, you may be exposed to third party content from a variety of sources, and that Podible is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such third party content. You further understand and acknowledge that you may be exposed to third party content that may be in appropriate, offensive, indecent, inaccurate, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Podible with respect thereto.
YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS PODIBLE, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, INFORMATION PROVIDERS AND SUPPLIERS FROM AND AGAINST ALL LOSSES, EXPENSES, DAMAGES AND COSTS, INCLUDING REASONABLE ATTORNEY’S FEES, RESULTING FROM ANY VIOLATION OF THIS AGREEMENT, BREACH OF YOUR REPRESENTATIONS CONTAINED HEREIN, OR ANY ACTIVITY RELATED TO YOUR ACCOUNT (INCLUDING INFRINGEMENT OF THIRD PARTIES’ WORLDWIDE INTELLECTUAL PROPERTY RIGHTS OR NEGLIGENT OR WRONGFUL CONDUCT) BY YOU OR ANY OTHER PERSON ACCESSING THE SITE OR THE APP USING YOUR THE ACCOUNT.
7. Waiver and Release
YOU AGREE THAT NEITHER PODIBLE NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS OR SUPPLIERS SHALL HAVE ANY LIABILITY TO YOU UNDER ANY THEORY OF LIABILITY OR INDEMNITY IN CONNECTION WITH YOUR USE OF THE SITE, THE APP, THE SERVICE, OR THE CONTENT. YOU SPECIFICALLY ACKNOWLEDGE THAT PODIBLE SHALL NOT BE LIABLE FOR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU. YOU HEREBY RELEASE AND FOREVER WAIVE ANY AND ALL CLAIMS YOU MAY HAVE AGAINST PODIBLE, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS OR SUPPLIERS (INCLUDING BUT NOT LIMITED TO CLAIMS BASED UPON THE NEGLIGENCE OF PODIBLE, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS OR SUPPLIERS) FOR LOSSES OR DAMAGES YOU SUSTAIN IN CONNECTION WITH YOUR USE OF THE SITE, THE APP, THE SERVICE, OR THE CONTENT.
8. Liability Limitation
NOTWITHSTANDING THE ANYTHING TO THE CONTRARY HEREIN , in no event shall Podible or its suppliers be liable UNDER ANY THEORY OF LAW, FOR ANY INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (including, without limitation, damages for loss of data or profit, due to business interruption, LOSS OF INFORMATION OR DATA OR COSTS OF REPLACEMENT GOODS) arising out of the use or inability to use the Site, the App or RESULTING FROM USE OF OR RELIANCE ON THE INFORMATION PRESENTED, even if Podible or a Podible authorized representative has been notified orally or in writing of the possibility of such damage. The Site and the app are controlled and offered by Podible from its facilities in the United States of America. Podible makes no representations that the Site is appropriate or available for use in other locations. Those who access or use the Site OR APP from other jurisdictions do so at their own volition and are responsible for compliance with local law. Because some jurisdictions do not allow limitations on implied warranties, or limitations of liability for consequential or incidental damages, these limitations may not apply to you.
We may modify this Agreement at any time, and such modification will be effective immediately upon either posting of the modified Agreement or notifying you. You agree to review this Agreement periodically to ensure that you are aware of any modifications and you agree that your continued access or use of the Site and/or App shall be deemed your conclusive acceptance of the modified Agreement.
10. Copyright or Intellectual Property Infringement Notification.
Podible respects the intellectual property rights of others. You can notify Podible of possible copyright infringement, and Podible will review all claims of copyright infringement received and remove content deemed to have been posted or distributed in violation of any such laws. To make a claim, please provide the following:
- A physical or an electronic signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest that is allegedly infringed;
- 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 Site reasonably sufficient to permit Podible to locate the material;
- Your contact information, including your address, telephone number, and email;
- A statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement by you that the above information in your notice is accurate and that you, made under penalty of perjury, are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
Contact the agent designated to receive and act on copyright violations under the Digital Millennium Copyright Act (“DMCA”). Claims can be directed to us at (856) 981-0548, sheldon@Podible.com or to Podible Inc., 244 Madison Avenue, Suite 301, New York, NY 10016.
11. Term and Termination
Either you or Podible may terminate this Agreement at any time and for any reason. In addition, this Agreement will terminate immediately, without notice, if you fail to comply with the terms of this Agreement. Podible also reserves the right to terminate or suspend your Account and access to the Site, App and Services without prior notice. The provisions of Sections 1a (Proprietary Rights), 1b (regarding user restrictions), 1f (User Representations), 3 (Feedback), 5 (Disclaimer), 6 (Indemnification), 7 (Waiver and Release), 8 (Liability Limitation), 11 (Term and Termination), and 13 (Miscellaneous) shall survive any termination of this Agreement.
- Collection of Information. Information that you provide to us which can personally identify you, such as your Social Media Site Profile and your email address, is considered your “Personal Information”. In addition to the Personal Information, we may collect the following general information (collectively with Personal Information, the “Information”):
- Information from publicly accessible sources on the Site or the App.
- Certain standard browser information, such as your browser type, IP address, and access times.
- Your GPS location accessible by us through the App. Your approximate location may also be derived from your IP address.
- User behavior with the Site and App.
- Certain information about your mobile device, such as, for example, advertising identifiers, the hardware model, operating system, software and file names, preferred language, unique device identifier, serial number, device motion information, and mobile network information.
In using and/or accessing the Services, you expressly authorize us to collect and use your Information in connection with the Services. To the extent you share information from your contacts list and information, whether from your Social Media Site Profile or your mobile device, you agree that we may, but are not obligated to, upload such contacts list and/or information to our servers in connection with providing the Services. You further acknowledge and agree that we may, but are not obligated to, maintain copies of your Information indefinitely, or delete any or all Information, at our sole discretion. When you receive promotional e-mails or newsletters from us, if any, we may use customized links or similar technologies to determine whether such newsletters or e-mail has been opened and which links you click. This information is used to provide you more focused e-mail communications and/or other information. By accessing your Account, you may choose to share your Personal Information with select Podible partners so that they can contact you about their respective products, services or offers.
- Disclosing of Personal Information to Third Parties. Except as described herein, we do not sell, rent, lease or disclose your Personal Information. Your Personal Information will be used only by Podible and its controlled subsidiaries and affiliates, and your Personal Information will not be disclosed to any other third party without your consent and except as follows:
- We may hire other companies to provide limited administrative and communication services on our behalf, such as hosting Sites, the processing and delivery of mailings or providing customer support. We have the right to disclose your Personal Information to these third party companies for the purpose of administering and maintaining the Site and App’s features, functions and operations. Those companies will be permitted to obtain only such Personal Information as necessary for them to deliver the respective services, and we do not authorize these companies to use your Personal Information except for the sole purpose of providing those services requested by us.
- Security of Personal Information. The Personal Information Podible collects is securely stored within our database, and we use standard, industry-wide practices such as firewalls, encryption, and (in certain areas) Secure Socket Layers (“SSL”) for protecting your information. However, as effective as encryption technology is, no security system is impenetrable. Podible cannot guarantee the security of our database, nor can we guarantee that information you supply won’t be intercepted while being transmitted to Podible over the Internet. Podible recommends that you not disclose your password to anyone.
- GPS Location Information. From the permission system on your mobile operating system, we may request permission for the App’s collection of your GPS location from your device. If you initially permit the collection of this information, you can later disable it by changing the location settings on your mobile device.
- Collection and Use of Children’s Personal Information. The Site, the App, and the Services are intended for general audiences, and Podible does not knowingly collect any Personal Information from children.
- E-mail Communications. Upon registration for an Account or using the Services, we may send you daily or weekly e-mails. If you do not want to receive e-mail or other mail from us, please notify us by e-mail at email@example.com and include sufficient information for us to identify your Account, including your name, email address and the specifics of your request. However, after you unsubscribe to cease receiving e-mails, Podible may still contact you via e-mail for administrative or informational purposes, including messages regarding the administration of your Account and/or any services or events to which you have registered.
This Agreement shall be governed by and construed in accordance with the laws of the State of New York. You agree that any legal action or proceeding between Podible and you for any purpose concerning this Agreement or the parties’ obligations hereunder shall be brought exclusively in a court of competent jurisdiction sitting in New York County, New York, United States. Any cause of action or claim you may have with respect to Podible must be commenced within one (1) year after the claim or cause of action arises. Podible’s failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right. No waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision or condition hereof, whether or not similar, nor shall such waiver constitute a continuing waiver of any such term, provision or condition hereof. No waiver shall be binding unless executed in writing by the party making the waiver. This Agreement constitutes the complete and exclusive statement of the agreement between the parties with respect to the Service and supersedes any and all prior or contemporaneous communications, representations, statements and understandings, whether oral or written, between the parties concerning the Service. If any action in law or in equity is necessary to enforce the terms of this Agreement, the prevailing party will be entitled to reasonable fees of attorneys, accountants, and other professionals, and costs and expenses in addition to any other relief to which such prevailing party may be entitled. The provisions of this Agreement are severable, and in the event any provision hereof is determined to be invalid or unenforceable, such invalidity or unenforceability shall not in any way affect the validity or enforceability of the remaining provisions hereof. No provisions of this Agreement are intended, nor will be interpreted, to provide or create any third party beneficiary rights or any other rights of any kind in any Nonprofit User, client, customer, affiliate, or any party hereto or any other person unless specifically provided otherwise herein, and except as so provided, all provisions hereof will be personal solely between the parties to this Agreement; except that Sections 6, 7 and 8 are intended to benefit Podible and its officers, directors, employees, agents, licensors, and suppliers. Podible may assign its rights and duties under this Agreement to any party at any time without notice to you. If you have any questions regarding this Agreement or if you do not understand any information about how we collect, maintain, use, or share your Personal Information. Any such questions or comments should be submitted via email to firstname.lastname@example.org. We will make every effort to resolve or answer your concern.
This Agreement is effective as of January 1, 2018.