Podbean Advertising Program Publisher Terms and Conditions
PLEASE READ VERY CAREFULLY THESE TERMS AND CONDITIONS BEFORE REGISTERING FOR THE Podbean Advertising ONLINE PROGRAM. PARTICIPATION IN THE Podbean Advertising ONLINE PROGRAM INDICATES THAT YOU ACCEPT THESE TERMS AND CONDITIONS. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, PLEASE DO NOT REGISTER FOR OR PARTICIPATE IN THE Podbean Advertising ONLINE PROGRAM.
Introduction. This agreement ("Agreement") between You and Podbean Inc. ("Podbean") consists of these Podbean Advertising Online Program (the "Program") Terms and Conditions ("Terms and Conditions"). "You" or "Publisher" means any entity identified in an enrollment form submitted by the same or affiliated persons, and/or any agency or network acting on its (or their) behalf, which shall also be bound by the terms of this Agreement.
1. Program Participation. Participation in the Program is subject to Podbean's prior approval and Your continued compliance with the Program Policies ("Program Policies"), located at https://www.Podbean.com/Advertising/policies, and/or such other URL as Podbean may provide from time to time. Podbean reserves the right to refuse participation to any applicant or participant at any time in its sole discretion. By enrolling in the Program, You represent that You are at least 18 years of age and agree that Podbean may serve third party and/or Podbean provided advertisements and/or other content (such third party provided advertisements, Podbean provided advertisements and other content, collectively, "Ads"), in your web sites, the Atom, RSS, or other feeds distributed through such Web site(s) , media player(s), audio and video content, mobile content and/or Other Properties (each such Web site, media player, video content, mobile content, Other Property or feed, a "Property").
2. Implementation and Operation of Ads. You agree to comply with the specifications provided by Podbean from time to time to enable proper delivery, display, tracking, and reporting of Ads in connection with Your Property(ies), including without limitation by not modifying the embed code or other programming provided to You by Podbean in any way, unless expressly authorized in writing by Podbean (including by electronic mail). You acknowledge and agree that the Ads will be inserted into the Property in an audio or video format approved by Podbean, optional banner/text ads will be displayed.
3. Communications Solely With Podbean. You agree to direct to Podbean, and not to any advertiser, any communication regarding any Ad(s) inserted in Your Property(ies).
4. Parties' Responsibilities. You are solely responsible for the Property(ies), including all content and materials, maintenance and operation thereof, the proper implementation of Podbean's specifications, and adherence to the terms of this Agreement, including compliance with the Program Policies. Podbean reserves the right to investigate, at its own discretion, any activity that may violate this Agreement, including but not limited to any use of a software application to access Ads, or any engagement in any activity prohibited by this Agreement. Podbean is not responsible for anything related to Your Property(ies), including without limitation the receipt of queries from end users of Your Property(ies) or the transmission of data between Your Property(ies) and Podbean. In addition, Podbean shall not be obligated to provide notice to You in the event that any Ad, is not being inserted properly to end users of the Property(ies).
5. Prohibited Uses. You shall not, and shall not authorize or encourage any third party to: (a) directly or indirectly generate queries, or impressions of or clicks on any Ad through any automated, deceptive, fraudulent or other invalid means, including but not limited to through repeated manual clicks, the use of robots or other automated query tools and/or computer generated requests, ; (b) act in any way that violates any Program Policies posted on the Podbean Web Site, as may be revised from time to time, or any other agreement between You and Podbean (including without limitation the Podbean Advertising program terms); (c) disseminate malware; (d) create a new account to use the Program after Podbean has terminated this Agreement with You as a result of your breach of this Agreement; or (e) engage in any action or practice that reflects poorly on Podbean or otherwise disparages or devalues Podbean's reputation or goodwill. You acknowledge that any attempted participation or violation of any of the foregoing is a material breach of this Agreement and that we may pursue any and all applicable legal and equitable remedies against You, including an immediate suspension of Your account or termination of this Agreement, and the pursuit of all available civil or criminal remedies.
6. Termination; Cancellation. Subject to any third party agreements You may stop accepting Ads on any Property in the Program with or without cause at any time. You may terminate this Agreement with or without cause at any time by sending written notice of your desire to cancel Your participation in the Program to contact@Podbean.com. This Agreement will be deemed terminated within ten (10) business days of Podbean's receipt of Your notice. Podbean may investigate any activity that may violate this Agreement. Podbean may at any time, in its sole discretion, terminate all or part of the Program, terminate this Agreement, or suspend or terminate the participation of any Property in all or part of the Program for any reason.
7. Confidentiality. You agree not to disclose Podbean Confidential Information without Podbean's prior written consent. "Podbean Confidential Information" includes without limitation: (a) all Podbean software, technology, programming, specifications, materials, guidelines and documentation relating to the Program; (b) statistics relating to Property performance in the Program provided to You by Podbean; and (c) any other information designated in writing by Podbean as "Confidential" or an equivalent designation. However, You may accurately disclose the amount of Podbean's gross payments to You pursuant to the Program. Podbean Confidential Information does not include information that has become publicly known through no breach by You or Podbean, or information that has been (i) independently developed without access to Podbean Confidential Information, as evidenced in writing; (ii) rightfully received by You from a third party; or (iii) required to be disclosed by law or by a governmental authority.
8. No Guarantee. Podbean makes no guarantee regarding the level of impressions of Ads or clicks on any Ad , the timing of delivery of such impressions and/or clicks, or the amount of any payment to be made to You under this Agreement. In addition, for the avoidance of doubt, Podbean does not guarantee the Program will be operable at all times or during any down time (i) caused by outages to any public Internet backbones, networks or servers, (ii) caused by any failures of Your equipment, systems or local access services, (iii) for previously scheduled maintenance or (iv) relating to events beyond Podbean's (or its wholly owned subsidiaries' control such as strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where Podbean (or its wholly owned subsidiaries) or Your servers are located or co-located.
9. No Warranty. Podbean MAKES NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WITH RESPECT TO ADVERTISING AND OTHER SERVICES, AND EXPRESSLY DISCLAIMS THE WARRANTIES OR CONDITIONS OF NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR ANY PARTICULAR PURPOSE. TO THE EXTENT ADS ARE BASED ON OR INSERTED IN CONNECTION WITH NON-Podbean CONTENT, Podbean SHALL NOT HAVE ANY LIABILITY IN CONNECTION WITH THE DISPLAY OF SUCH ADS.
10. Limitations of Liability; Force Majeure. EXCEPT FOR ANY INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS HEREUNDER OR YOUR BREACH OF ANY INTELLECTUAL PROPERTY RIGHTS AND/OR PROPRIETARY INTERESTS RELATING TO THE PROGRAM, (i) IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND (ii) Podbean'S AGGREGATE LIABILITY TO PUBLISHER UNDER THIS AGREEMENT FOR ANY CLAIM IS LIMITED TO THE NET AMOUNT PAID BY Podbean TO PUBLISHER DURING THE THREE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM. Each party acknowledges that the other party has entered into this Agreement relying on the limitations of liability stated herein and that those limitations are an essential basis of the bargain between the parties. Without limiting the foregoing and except for payment obligations, neither party shall have any liability for any failure or delay resulting from any condition beyond the reasonable control of such party, including but not limited to governmental action or acts of terrorism, earthquake or other acts of God, labor conditions, and power failures.
12. Publicity. You agree that Podbean may use Your name and logo in presentations, marketing materials, customer lists, financial reports, Web site listings of customers, Search Results Pages, and Referral Pages.
13. Representations and Warranties. You represent and warrant that (a) all of the information provided by You to Podbean to enroll in the Program is correct and current; (b) You are the owner of each Property or You are legally authorized to act on behalf of the owner of such Property(ies) for the purposes of this Agreement and the Program; (c) You have all necessary right, power, and authority to enter into this Agreement and to perform the acts required of You hereunder; and (d) You have complied and will continue to comply with all applicable laws, statutes, ordinances, and regulations (including without limitation the CAN-SPAM Act of 2003 and any relevant data protection or privacy laws) in Your performance of any acts hereunder. In addition, (1) You represent and warrant that You have a valid license to use and distribute audio content, video content and media player for the purposes of this Agreement and the Program. You further represent and warrant that each Property and any material displayed therein: (i) comply with all applicable laws, statutes, ordinances, and regulations; (ii) do not breach and have not breached any duty toward or rights of any person or entity including, without limitation, rights of intellectual property, publicity or privacy, or rights or duties under consumer protection, product liability, tort, or contract theories; and (iii) are not pornographic, hate-related or otherwise violent in content.
14. Your Obligation to Indemnify. You agree to indemnify, defend and hold Podbean, its agents, affiliates, subsidiaries, directors, officers, employees, and applicable third parties (e.g. relevant advertisers, syndication partners, licensors, licensees, consultants and contractors) (collectively "Indemnified Person(s)") harmless from and against any and all third party claims, liability, loss, and expense (including damage awards, settlement amounts, and reasonable legal fees), brought against any Indemnified Person(s), arising out of, related to or which may arise from Your use of the Program, the Property(ies), and/or Your breach of any term of this Agreement.
15. Miscellaneous. This Agreement shall be governed by the laws of Delaware, except for its conflicts of laws principles. Any dispute or claim arising out of or in connection with this Agreement shall be adjudicated in Delaware. The parties specifically exclude from application to the Agreement the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. Any modifications to this Agreement must be made in a writing executed by both parties, by Your online acceptance of updated terms, or after Your continued participation in the Program after such terms have been updated by Podbean. The failure to require performance of any provision shall not affect a party's right to require performance at any time thereafter, nor shall a waiver of any breach or default of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself. If any provision herein is held unenforceable, then such provision will be modified to reflect the parties' intention, and the remaining provisions of this Agreement will remain in full force and effect. You may not resell, assign, or transfer any of Your rights hereunder. Any such attempt may result in termination of this Agreement, without liability to Podbean. Notwithstanding the foregoing, Podbean may assign this Agreement to any affiliate at any time without notice. The relationship between Podbean and You is not one of a legal partnership relationship, but is one of independent contractors.