The Platform is provided solely (the “Permitted Use”) to: (1) assist you in gathering information about the various types of Promotion opportunities and Brand Advertisers available on the Platform, including profiles, price ranges, and Promotion descriptions (each, a “Brand Advertiser Profile”); (2) enable you to post information regarding yourself and to respond to any Promotion opportunities; (3) post reviews of Brand Advertisers; (4) facilitate communication with Brand Advertisers with the objective of entering into a Promotion Agreement; and (5) facilitate the transmission of payments from the Brand Advertiser to you under a Promotion Agreement (“Platform Services”).
Podcorn reserves the right to change any information, material or content (including, but not limited to, price, features, availability of Brand Advertisers, Brand Advertiser Profiles, types of Promotions, and reviews of Promotions and Brand Advertisers) contained on or provided through the Platform (the “Content”) at any time, and from time to time, without notice.
You will be required to successfully sign up for a user account (the “User Account”) using the available interfaces at the Platform and be issued with a username and password login credentials by Podcorn (“User ID”) in order to use the Platform and communicate with Brand Advertisers through the Platform. If you are issued with a User ID, you shall keep your User ID secure and shall not share your User ID with anyone else, and you shall not collect or harvest any personal data of any other user of Podcorn, including account names. Podcorn reserves the right to disable any User Account issued to you at any time in Podcorn’s sole discretion. If Podcorn disables access to a User Account issued to you, you may be prevented from accessing the Platform, your account details or any Promotions that are associated with your account.
You will take no position with respect to or on any tax return or application for benefits, or in any proceeding directly or indirectly involving Podcorn that you are an employee of Podcorn.
You are solely responsible for determining which Promotions you will choose to accept, the manner in which you will perform your obligations under Promotion Agreements, and how, when, where, and how long you will use the Platform.
Podcorn does not restrict your right to provide services through other platforms or to other parties, including competitors of the Podcorn. Podcorn anticipates and expects that Podcasters performing Promotions through the Platform will provide services through other platforms. You acknowledge and represent you can earn income from other sources. Podcorn does not guarantee you any minimum amount of Promotions or that you will derive any minimum amount of income through the Platform.
Podcorn does not assess the performance of Podcasters, and does not oversee the performance of the Promotion Agreements or instruct the Podcaster as to how the Promotion Agreements will be performed.
Podcorn does not pay a salary or hourly rate but rather facilitates payment of the rate set by the Brand Advertiser.
Podcorn does not provide training, tools, equipment, benefits, or expense reimbursement to Podcasters.
Podcorn does not dictate the time of performance of the Promotion Agreements, and you retain the option to accept, decline, or ignore Promotions.
Podcorn does not combine its business operations in any way with your business, but instead maintains its operations as separate and distinct.
You are responsible for obtaining and maintaining any required registration, licenses, or other authorization necessary for the services you render.
Benefits and Contributions. You are not entitled to or eligible for any benefits that Podcorn, its parents, subsidiaries, affiliates or other related entities may make available to their employees, such as group insurance, profit-sharing or retirement benefits. Podcorn will not withhold or make payments for social security, make unemployment insurance or disability insurance contributions, or obtain workers’ compensation insurance on your behalf. If, notwithstanding the foregoing, you are classified as an employee of Podcorn, or any affiliate of Podcorn (“Affiliate”), by the U.S. Internal Revenue Service (“IRS”), the U.S. Department of Labor (“DOL”), or any other federal, state or foreign court or agency, you agree that you will not, as the result of such reclassification, be entitled to or eligible for, on either a prospective or retrospective basis, any employee benefits under any plans or programs established or maintained by either the Customer and its parents, subsidiaries, affiliates or related entities or by Podcorn, its parents, subsidiaries, affiliates or other related entities.
If Podcorn facilitates the transmission of any payments from the Brand Advertiser to you in connection with a Promotion Agreement (each, a “Facilitated Payment”), Podcorn may in its sole discretion withhold from any such Facilitated Payment any amounts that are payable to Podcorn by the applicable Brand Advertiser in connection with that Promotion Agreement. Podcorn is not your trustee or fiduciary in respect of any Facilitated Payments or any Promotion Agreements. Podcorn reserves the right, at its sole discretion, to place a hold on a Facilitated Payment if Podcorn determines that the funds may be subject to a breach of applicable law (e.g. fraud or money laundering), or if Podcorn is required to cooperate with law enforcement
Neither you nor your agents or affiliates will directly or indirectly enter into an agreement for the creation of any Promotional Content with a Brand Advertiser that you contacted or connected with through the Platform except for Promotion Agreements for which Podcorn will receive a fee as provided for thereunder. Podcorn reserves the right, in its sole discretion, to ban Podcasters that engage in such prohibited agreements. Podcorn will not be responsible and bears no liability for the consequences of any such prohibited agreements.
You are fully responsible for your Submissions, specifically including, but not limited to, reviews posted to the Platform. You acknowledge that Podcorn may exercise its rights (e.g. use, publish, delete) to use any Submissions without any notice to you.
All Content, including (without limitation) all designs, infrastructure graphics, pictures, illustrations, software, artwork, video, music, sound, names, words, titles, phrases, logos and marks displayed on the Platform, are owned or licensed by Podcorn and are protected by copyright, trade-mark and other intellectual property laws.
All contents of the Podcorn website are: © 2020 Podcorn Media, Inc.
With respect to the content or other materials you upload through the Platform or share with other users or recipients (collectively, “User Content”), you represent and warrant that you own all right, title and interest in and to such User Content, including, without limitation, all copyrights and rights of publicity contained therein. By uploading any User Content you hereby grant and will grant Podcorn and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify and otherwise use your User Content in connection with the operation of the Service or the promotion, advertising or marketing thereof, in any form, medium or technology now known or later developed.
Podcorn respects the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify Podcorn of your infringement claim in accordance with the procedure set forth below.
Podcorn will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to Podcorn’s Copyright Agent at firstname.lastname@example.org (Subject line: “DMCA Takedown Request”). You may also contact us by mail at:
407 Maple Drive, Beverly Hills, CA 90210
a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
If you believe that your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to upload and use the content in your User Content, you may send a written counter-notice containing the following information to the Copyright Agent:
If a counter-notice is received by the Copyright Agent, Podcorn will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.
In accordance with the DMCA and other applicable law, Podcorn has adopted a policy of terminating, in appropriate circumstances and at Podcorn’s sole discretion, users who are deemed to be repeat infringers. Podcorn may also at its sole discretion limit access to the Service and/or terminate the memberships of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
Please note that Brand Advertisers may have additional privacy policies or statements that govern their practices in collecting, storing, using and disclosing your personal information. Podcorn has no control over and takes no responsibility for the privacy policies or statements of Brand Advertisers or other third parties. Please read those additional privacy policies or statements carefully.
To the extent that any User Content or other data that Podcorn processes on your behalf contains information that (i) relates to or could reasonably be associated with an individual and (ii) is subject to applicable data protection laws (“Personal Information”), Podcorn will not sell, retain, use, or disclose such Personal Information other than as expressly stated in this Agreement or as necessary to provide the Platform Services.
You shall not, without Podcorn’s prior written permission, use the Platform and the Content for purposes other than the Permitted Use. Without limiting the generality of the foregoing, you shall not, and shall not permit anyone else to:
(a) “frame”, “mirror” or otherwise incorporate the Platform or the Content or any part thereof on any commercial or non-commercial website;
(b) access, monitor or copy any part of the Platform or the Content using any robot, spider, scraper or other automated means or any manual process for any purpose without our express written permission;
(c) violate the restrictions in any robot exclusion headers on the Content or the Platform or bypass or circumvent other measures employed to prevent or limit access to the Platform;
(d) take any action that imposes, or may impose, in Podcorn’s discretion, an unreasonable or disproportionately large load on the Platform;
(e) deep-link to any portion of the Platform for any purpose;
(f) remove (or permit anyone else to remove) any watermarks, labels or other legal or proprietary notices included in any Promotion, the Platform or the Content;
(g) modify or attempt to modify (or permit anyone else to modify or attempt to modify) the Platform or any Promotions, including any modification for the purpose of disguising or changing any indications of the ownership or source of the Platform or a Promotion
(h) use the Platform or any Promotion or Content as part of any service for sharing, lending or multi-person use, or for the purpose of any other institution, except as specifically permitted by an applicable Promotion Agreement and only in the exact manner specified and enabled by therein;
(i) attempt to, assist, authorize or encourage others to circumvent, disable or defeat any of the security features or components, such as digital rights management software or encryption,
that protect the Platform;
(j) copy, reproduce, modify, distribute, transfer, sell, publish, broadcast, perform, transmit, publish, license or circulate in any form any part of the Platform or the Content;
(k) create derivative works based on the Platform or the Content, in whole or in part, or to decompile, disassemble, reverse engineer or other exploit any part of the Platform or the Content;
(l) use of access the Platform in a manner that violates the rights (including, but not limited to intellectual property rights) of any third party; or
(m) upload to or transmit through the Platform any information, images, text, data, media or other Content that is offensive, pornographic, hateful, obscene, defamatory or violates any laws or regulations (including but not limited to criminal laws and FTC regulations), in each case as determined by Podcorn in its sole discretion,
(n) post, upload, publish, submit or transmit any Content that:
(i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy;
(ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability;
(iii) is fraudulent, false, misleading or deceptive;
(iv) is defamatory, obscene, pornographic, vulgar or offensive;
(v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group;
(vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or
(vii) promotes illegal or harmful activities or substances.
You shall be solely liable for any damages resulting from any violation of the foregoing restrictions, or any other harm resulting from your posting of Content to the Platform.
You are required to follow the Federal Trade Commission’s Endorsement Guides. In the event a Brand Advertiser engages you for a Promotion, you understand and agree that you are required to clearly and conspicuously disclose any material connection between you and the Brand Advertiser. Material connections include, but are not necessarily limited to, the Brand Advertiser providing you with something of value, such as monetary compensation or free use of products or services, in exchange for your participation in a Promotion. In general, disclosures should be:
As a Podcaster, it is your responsibility to understand and abide by the requirements imposed on you by the FTC and to ensure that a clear and conspicuous disclosure is made each and every time you create Promotion Content.
If Podcorn learns of Promotions you create that do not, in our sole discretion, abide by the FTC endorsement disclosure guides, we may require you to add appropriate disclosures, and we may require you to suspend the Promotion until such disclosures are added. Repeated failure to include appropriate disclosures in your Promotions, or your failure to add disclosures upon request by Podcorn, may result in termination of your Account.
The Platform may provide links to third party websites. Podcorn does not endorse the information contained on those web sites or guarantee their quality, accuracy, reliability, completeness, currency, timeliness, non-infringement, merchantability or fitness for any purpose. The content in any linked web site is not under Podcorn’s control, and if you choose to access any such web site, you do so entirely at your own risk.
The downloading and viewing of Content is done at your own risk. Podcorn cannot and does not guarantee or warrant that the Platform or the Content are compatible with your computer system or that the Platform or the Content, or any links from the Platform or the Content, shall be free of viruses, worms, trojan horses or disabling devices or other code that manifests contaminating or destructive properties. You are responsible for implementing safeguards to protect the security and integrity of your computer system, and you are responsible for the entire cost of any service, repairs or connections of and to your computer system that may be necessary as a result of your use of the Platform
Podcorn does not guarantee the confidentiality of any communications made by you through the Platform. Although Podcorn generally adheres to the accepted industry practices in securing the transmission of data to, from and through the Platform, you understand, agree and acknowledge that Podcorn cannot and does not guarantee the security of data transmitted over the Internet or public networks in connection with your use of the Platform or any Promotions.
THE PLATFORM AND THE CONTENT ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. USE OF THE PLATFORM OR THE CONTENT IS AT YOUR OWN RISK. PODCORN DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS ABOUT THE QUALITY, ACCURACY, RELIABILITY, COMPLETENESS, CURRENCY, OR TIMELINESS OF THE PLATFORM OR THE CONTENT. THE PLATFORM AND THE CONTENT MAY INCLUDE ERRORS, OMISSIONS AND INACCURACIES, INCLUDING, WITHOUT LIMITATION, PRICING ERRORS. PODCORN DOES NOT ASSUME ANY RESPONSIBILITY FOR ANY ERRORS, OMISSIONS OR INACCURACIES IN THE PLATFORM OR THE CONTENT. IN ADDITION, PODCORN EXPRESSLY RESERVES THE RIGHT TO CORRECT ANY PRICING ERRORS ON THE PLATFORM.
PODCASTER AND PROMOTION REVIEWS DISPLAYED ON THE SITE ARE INTENDED AS ONLY GENERAL GUIDELINES, AND PODCORN DOES NOT GUARANTEE THE ACCURACY OF THE REVIEWS. PODCORN MAKES NO GUARANTEES ABOUT THE AVAILABILITY OF SPECIFIC PODCASTERS, PROMOTIONS OR TYPES OF PROMOTIONS.
TO THE FULLEST EXTENT PERMITTED BY LAW, PODCORN DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS OF ANY KIND WITH RESPECT TO THE PLATFORM AND THE CONTENT WHETHER EXPRESS, IMPLIED, STATUTORY OR COLLATERAL, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OR THAT THE PLATFORM OR THE CONTENT ARE OR WILL BE ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION. IN NO EVENT WILL PODCORN BE LIABLE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY, FOR ANY DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, LOST PROFITS, LOSS OF USE, LOSS OF DATA, PERSONAL INJURY, FINES, FEES, PENALTIES OR OTHER LIABILITIES), WHETHER OR NOT PODCORN IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, RESULTING FROM OR RELATED TO THE USE OF, OR THE INABILITY TO MAKE USE OF, THE PLATFORM OR THE CONTENT OR ANY PROMOTION AGREEMENT.
PODCASTERS MARKETING THEIR SERVICES THROUGH THE PLATFORM ARE INDEPENDENT ORGANIZATIONS AND NOT CONTRACTORS, AGENTS OR EMPLOYEES OF PODCORN. PODCORN IS NOT LIABLE FOR THE ACTS, ERRORS, OMISSIONS, REPRESENTATIONS, WARRANTIES, BREACHES OR NEGLIGENCE OF ANY PODCASTERS OR FOR ANY PERSONAL INJURIES, DEATH, PROPERTY DAMAGE, OR OTHER DAMAGES OR EXPENSES RESULTING THEREFROM AND TAKES NO RESPONSIBILITY WHATSOEVER FOR PROMOTIONS CREATED BY PODCASTERS.
The limitations above reflect the allocation of risk between the parties. The limitations specified in this section will survive and apply even if any limited remedy specified in these terms is found to have failed of its essential purpose.
You shall defend, indemnify and hold harmless Podcorn and all of its officers, directors, employees and agents from and against any claims, causes of action, demands, recoveries, losses, damages, fines, penalties or other costs or expenses of any kind or nature including but not limited to reasonable legal and accounting fees, brought in connection with or as a result of:
(b) your violation of any law (including, without limitation, any FTC regulation or guideline) or the rights of a third party (including, without limitation, intellectual property rights);
(c) your use of the Platform;
(d) breach of or failure to perform under any Promotion Agreement by you or by any third party acting on your behalf or with your permission; or (d) the use of any media content created by Podcasters, you or third parties in connection with a Promotion by you, Podcasters, or by any third party acting on your behalf or with your permission.
Not all of the Podcasters, Promotions and services described on the Platform are available in all jurisdictions. Furthermore, nothing on the Platform constitutes an offer or solicitation to buy or sell any product or service to anyone in any jurisdiction in which such an offer or solicitation is prohibited by law.
be offered for use.
Except as restricted by applicable law, you hereby consent to the exclusive jurisdiction and venue of the state and federal courts located in Los Angeles County, California in all disputes arising out of or relating to the use of the Platform or the Content.