Podbean Advertising Program Advertiser Service Terms
These Podbean Inc. Advertising Program Terms ("Terms") are entered into by, as applicable, the advertiser signing these Terms or any document that references these Terms or that accepts these Terms electronically ("Advertiser") and Podbean Inc. ("Podbean"). These Terms govern Advertiser's participation in Podbean's advertising program(s) ("Program") and, as applicable, any service agreements ("Service") executed by and between the parties and/or Advertiser's online management of any advertising campaigns. These Terms and any applicable Service are collectively referred to as the "Agreement." Podbean and Advertiser hereby agree and acknowledge:
2 The Program. Advertiser is solely responsible for all: (a) ad targeting options and all ad content, whether generated by or for Advertiser; and (b) Advertiser shall protect any Advertiser passwords and takes full responsibility for Advertiser's own, and third party, use of any Advertiser accounts. (c) Advertiser understands and agrees that ads may be placed on any content or property provided by Podbean ("Podbean Property"), and, unless Advertiser opts out of such placement in the manner specified by Podbean. Advertiser authorizes and consents to all such placements. (d) Podbean may modify any of its Programs at any time without liability. Podbean also may modify these Terms at any time without liability, and Advertiser's use of the Program after notice that these Terms have changed constitutes Advertiser's acceptance of the new Terms. (e) Podbean or Partners may reject or remove any ad or Target for any or no reason. (f) Advertiser Ads placement will be decided by Podbean online auction-based advertising system.
3 Cancellation. Advertiser may cancel advertising online through Advertiser's account if online cancellation functionality is available, or, if not available, with prior written notice to Podbean, including without limitation electronic mail. Podbean online auction-based advertising canceled online will cease serving shortly after cancellation. The cancellation of all other advertising may be subject to Program policies or Podbean's ability to re-schedule reserved inventory or cancel ads already in production. Canceled ads may be published despite cancellation if cancellation of those ads occurs after any applicable commitment date as set forth in advance by Podbean, in which case Advertiser must pay for those ads. Podbean may cancel immediately any Service, any of its Programs, or these Terms at any time with notice, in which case Advertiser will be responsible for any ads already run. Sections 1, 2, 3, 5, 6, 7, 8, and 9 will survive any expiration or termination of this Agreement.
4 Prohibited Uses; License Grant; Representations and Warranties. Advertiser shall not, and shall not authorize any party to: (a) generate automated, fraudulent or otherwise invalid impressions, inquiries, conversions, clicks or other actions; (b) use any automated means or form of scraping or data extraction to access, query or otherwise collect Podbean advertising related information from any Program website or property except as expressly permitted by Podbean; or (c) advertise anything illegal or engage in any illegal or fraudulent business practice. Advertiser represents and warrants that it holds and hereby grants Podbean and Partners all rights (including without limitation any copyright, trademark, patent, publicity or other rights) in Creative, Services and Targets needed for Podbean and Partner to operate Programs (including without limitation any rights needed to host, cache, route, transmit, store, copy, modify, distribute, perform, display, reformat, excerpt, analyze, and create algorithms from and derivative works of Creative or Targets) in connection with this Agreement ("Use"). Advertiser represents and warrants that (a) all Advertiser information is complete, correct and current; and (b) any Use hereunder and Advertiser's Creative, Targets, and Advertiser's Services will not violate or encourage violation of any applicable laws, regulations, code of conduct, or third party rights (including without limitation intellectual property rights). Violation of the foregoing may result in immediate termination of this Agreement or Advertiser's account without notice and may subject Advertiser to legal penalties and consequences.
5 Disclaimer and Limitation of Liability. To the fullest extent permitted by law, Podbean DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION FOR NON-INFRINGEMENT, SATISFACTORY QUALITY, MERCHANTABILITY AND FITNESS FOR ANY PURPOSE. To the fullest extent permitted by law, Podbean disclaims all guarantees regarding positioning, levels, quality, or timing of: (a) costs per play/hit; (b) availability and delivery of any impressions, Creative, or Targets on any Partner Property, Podbean Property, or section thereof; (c) the accuracy of Partner data (e.g. reach, size of audience, demographics or other purported characteristics of audience); and (d) the adjacency or placement of ads within a Program. Advertiser understands that third parties may generate impressions or plays on Advertiser's ads for prohibited or improper purposes, and Advertiser accepts the risk of any such impressions and plays. Advertiser's exclusive remedy, and Podbean's exclusive liability, for suspected invalid impressions or plays is for Advertiser to make a claim for a refund in the form of advertising credits for Podbean Properties within the time period required under Section 7 below. Any refunds for suspected invalid impressions or plays are within Podbean's sole discretion. EXCEPT FOR INDEMNIFICATION AMOUNTS PAYABLE TO THIRD PARTIES HEREUNDER AND Advertiser'S BREACHES OF SECTION 1, TO THE FULLEST EXTENT PERMITTED BY LAW: (a) NEITHER PARTY WILL BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, REVENUE, INTEREST, GOODWILL, LOSS OR CORRUPTION OF DATA OR FOR ANY LOSS OR INTERRUPTION TO Advertiser'S BUSINESS) WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY; AND (b) EACH PARTY'S AGGREGATE LIABILITY TO THE OTHER IS LIMITED TO AMOUNTS PAID OR PAYABLE TO Podbean BY Advertiser FOR THE AD GIVING RISE TO THE CLAIM. Except for payment obligations, neither party is liable for failure or delay resulting from a condition beyond the reasonable control of the party, including without limitation to acts of God, government, terrorism, natural disaster, labor conditions and power failures.
6 Agency. Advertiser represents and warrants that (a) it is authorized to act on behalf of and has bound to this Agreement any third party for which Advertiser advertises (a "Principal"), (b) as between Principal and Advertiser, the Principal owns any rights to Program information in connection with those ads, and (c) Advertiser shall not disclose Principal's Program information to any other party without Principal's consent.
7 Payment. Advertiser shall be responsible for all charges up to the amount of each Service, or as set in an online account, and shall pay all charges in U.S. Dollars or in such other currency as agreed to in writing by the parties. Unless agreed to by the parties in writing, Advertiser shall pay all charges in accordance with the payment terms in the applicable Service. Late payments bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). Charges are exclusive of taxes. Advertiser is responsible for paying (a) all taxes, government charges, and (b) reasonable expenses and attorneys fees Podbean incurs collecting late amounts. To the fullest extent permitted by law, Advertiser waives all claims relating to charges (including without limitation any claims for charges based on suspected invalid clicks) unless claimed within 60 days after the charge (this does not affect Advertiser's credit card issuer rights). Charges are solely based on Podbean's measurements for the applicable Program, unless otherwise agreed to in writing. To the fullest extent permitted by law, refunds (if any) are at the discretion of Podbean and only in the form of advertising credit for only Podbean Properties. Nothing in these Terms or an Service may obligate Podbean to extend credit to any party. Advertiser acknowledges and agrees that any credit card and related billing and payment information that Advertiser provides to Podbean may be shared by Podbean with companies who work on Podbean's behalf, such as payment processors and/or credit agencies, solely for the purposes of checking credit, effecting payment to Podbean and servicing Advertiser's account. Podbean may also provide information in response to valid legal process, such as subpoenas, search warrants and court orders, or to establish or exercise its legal rights or defend against legal claims. Podbean shall not be liable for any use or disclosure of such information by such third parties.
8 Indemnification. Advertiser shall indemnify and defend Podbean, its Partners, agents, affiliates, and licensors from any third party claim or liability (collectively, "Liabilities"), arising out of Use, Advertiser's Program use, Targets, Creative and Services and breach of the Agreement. Partners shall be deemed third party beneficiaries of the above Partner indemnity.
9 Miscellaneous. THE AGREEMENT MUST BE CONSTRUED AS IF BOTH PARTIES JOINTLY WROTE IT AND GOVERNED BY CALIFORNIA LAW EXCEPT FOR ITS CONFLICTS OF LAWS PRINCIPLES. ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE Podbean PROGRAM(S) SHALL BE LITIGATED EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF DELAWARE, USA, AND Podbean AND Advertiser CONSENT TO PERSONAL JURISDICTION IN THOSE COURTS. The Agreement constitutes the entire and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any other agreements, terms and conditions applicable to the subject matter hereof. No statements or promises have been relied upon in entering into this Agreement except as expressly set forth herein, and any conflicting or additional terms contained in any other documents (e.g. reference to a purchase order number) or oral discussions are void. Each party shall not disclose the terms or conditions of these Terms to any third party, except to its professional advisers under a strict duty of confidentiality or as necessary to comply with a government law, rule or regulation. Advertiser may grant approvals, permissions, extensions and consents by email, but any modifications by Advertiser to the Agreement must be made in a writing executed by both parties. Any notices to Podbean must be sent to Podbean Inc., Advertising Programs, 501 Silverside Road, suite 105, Wilmington, DE 19809, USA, with a copy to Legal Department, via confirmed facsimile, with a copy sent via first class or air mail or overnight courier, and are deemed given upon receipt. A waiver of any default is not a waiver of any subsequent default. Unenforceable provisions will be modified to reflect the parties' intention and only to the extent necessary to make them enforceable, and remaining provisions of the Agreement will remain in full effect. Advertiser may not assign any of its rights hereunder and any such attempt is void. Podbean and Advertiser and Podbean and Partners are not legal partners or agents, but are independent contractors. In the event that these Terms or a Program expire or is terminated, Podbean shall not be obligated to return any materials to Advertiser. Notice to Advertiser may be effected by sending an email to the email address specified in Advertiser's account, or by posting a message to Advertiser's account interface, and is deemed received when sent (for email) or no more than 15 days after having been posted (for messages in Advertiser's interface).