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PodOmatic Terms of Service Agreement


Last updated: November 1, 2015

Welcome to PodOmatic!

Thanks for using our products and services (“Services”). The Services are provided by PodOmatic, Inc. (“PodOmatic”), located at 10 Cleveland Street, San Francisco, CA 94103, United States.

By using our Services, you are agreeing to these terms. Please read them carefully. If you do not agree to these Terms, do not use the Services.

This Terms of Service Agreement (the “Agreement”) is an agreement between you (the “User”) and PodOmatic, Inc. ("PodOmatic ", "we", or "us"). We provide Users with access to certain Services (as defined below) to help our customers create, browse, search, listen and manage podcasts by providing general and personalized content, hosting services, communication tools and forums, mobile applications, and ecommerce tools and services (collectively, the “Services”) directly and through the website and associated domains of https://www.podOmatic.com (the “Site".) This Agreement explains our obligations to you, and your obligations to us. This Agreement is the entire Agreement between us. By using the Site in any way you are agreeing to comply with these terms, our Privacy Policy and any other legal notices or conditions or guidelines posted on the Site.

  1. What We Own
  2. All products and services available on the Site, and all products and services provided by or through PodOmatic, its affiliates, subsidiaries, employees, agents, licensors or other commercial partners including, but not limited to, software, all informational text, software documentation, design of and "look and feel," layout, photographs, graphics, audio, video, messages, interactive and instant messaging, design and functions, files, documents, images, or other products, whether publicly posted or privately transmitted as well as all derivative works thereof, are owned by us or other parties that have licensed their material or provided services to us, and are protected by copyright, trademark, trade secret and other intellectual property laws. All PodOmatic trademarks and service marks, logos, slogans and taglines are the property of PodOmatic. All other trademarks, service marks, logos, slogans and taglines are the property of their respective owners. Except as otherwise specifically provided herein, nothing should be construed as granting any license or right to use any trademarks, service marks, logos, slogans or taglines displayed on PodOmatic without our express written permission, or the express written permission of such third-party that may own the trademark, service mark, logo, slogan or tagline.

  3. Rights to Use What We Own
  4. Subject to this Agreement, PodOmatic hereby grants you a limited, revocable, non-transferable and non-exclusive license to use the Services through a user identification reference provided by PodOmatic (“User ID”) to the extent, and only to the extent, necessary to access and use the Services in accordance with the terms of this Agreement. This license does not permit you, and you agree not to: store, copy, reproduce, republish, modify, upload, post, translate, scrape, rent, lease, loan, sell, distribute, transfer, transmit, display, decompile, reverse engineer, reverse assemble, decipher or otherwise attempt to discover any programming code or any source code used in or with the Products or otherwise distribute in any way the Products other than as specifically permitted in this Agreement. You may not sell, assign, sublicense, grant a security interest in or otherwise attempt to transfer any right in the Products, create derivative works based on or in any manner commercially exploit the Products, in whole or in part, other than as expressly permitted in this Agreement. Any use of the Products for any purpose other than as specifically permitted herein or without our prior consent or the prior written consent of our licensors, as applicable, is expressly prohibited. We reserve all rights not expressly granted in this Agreement.

    We will provide you one User ID for your account, thereby permitting you access to the Services through the Site. You agree to fully and accurately provide the information requested by us when setting up your accounts and to regularly update such information. Your failure to do so may result in the cancellation of your account and loss of Services.

  5. What You Provide to Us
  6. You are legally responsible for all information, data, text, software, music, sound, photographs, graphics, video, messages or other products uploaded, posted or stored in connection with your use of the Services (“Content”). PodOmatic is not responsible for your Content. You hereby grant PodOmatic a worldwide, royalty-free, non-exclusive license to host and use the Content in order to provide you with the Services and hereby represent and warrant that you have all the rights necessary to grant us such license. You are responsible for any Content that may be lost or unrecoverable through your use of the Services. You are encouraged to archive your Content regularly and frequently.

  7. Giving Us Access to Other Accounts and Services
  8. Some of our Services may require you to give us access to or require you to provide login information and password information for accounts or services you may have with third party providers. When you provide this information to us or give us access to these third party accounts you agree that you have read all contracts and written agreements governing such access, login information and passwords and that you have all the necessary contractual and legal rights to give us such access, login information and passwords.

  9. Comments and Feedback
  10. Any questions, comments, suggestions, ideas, feedback, or other information provided by you to us (“Comments”) are not confidential and you hereby grant us a worldwide, perpetual, irrevocable, royalty-free license to reproduce, display, perform, distribute, publish, modify, edit or otherwise use such Comments as we deem appropriate, for any and all commercial and/or non-commercial purposes, in our sole discretion.

  11. Monitoring What You Provide Us
  12. PodOmatic may, but has no obligation to, monitor Content on the Site or podcasts created using our Services. We may disclose any information necessary or appropriate to satisfy our legal obligations, protect PodOmatic or its customers, or operate the Services properly. PodOmatic, in its sole discretion, may refuse to post, remove, or require you to remove, any Content, in whole or in part, alleged to be unacceptable, undesirable, inappropriate, or in violation of this Agreement.

  13. Copyright Complaint
  14. If you believe that your work has been used or copied in a way that constitutes copyright infringement and such infringement is occurring on this Site, please notify PodOmatic. Pursuant to Title 17, United States Code, Section 512(c)(3), a notification of claimed infringement must be a written communication addressed to the designated agent as set forth below, and must include substantially all of the following:

    1. a physical or electronic signature of the person authorized to act on behalf of the owner of the copyright interest that is alleged to have been infringed;
    2. a description of the copyrighted work or works that you claim have been infringed ("infringed work") and identification of what material in such work(s) is claimed to be infringing ("infringing work") and which you request to be removed or access to which is to be disabled;
    3. a description of where the material that you claim is infringing is located on the Site;
    4. information sufficient to permit PodOmatic to contact you, such as your physical address, telephone number, and email address;
    5. a statement by you that you have a good faith belief that the use of the material identified in your Notice in the manner complained of is not authorized by the copyright owner, its agent, or the law;
    6. a statement by you that the information in your Notice is accurate and, under penalty of perjury that you are the copyright owner or authorized to act on the copyright owner's behalf.

  15. Rules
  16. You agree to all of the following:

    1. You hereby certify that you are at least 13 years of age. Individuals under the age of 13 are prohibited from using the Services
    2. You will ensure the email address provided in your account registration is valid at all times and will keep your contact information accurate and up-to-date.
    3. You will not use the Services for any unlawful purposes or to conduct any unlawful activity, including, but not limited to, fraud, embezzlement, money laundering or insider trading.
    4. You will not use the Services if you are located in a country embargoed by the U.S., or are on the U.S. Treasury Department's list of Specially Designated Nationals.
    5. You will not use the Services to impersonate another person.
    6. You will not imply or state, directly or indirectly, that you are affiliated with or endorsed by PodOmatic without our express written permission.
    7. You may not send unsolicited messages (also known as junk mail or SPAM) to promote any podcast published on the Site.
    8. You may not upload post, email, transmit or otherwise make available or initiate any Content that contains software viruses, worms, Trojan horses or any other computer code, files or programs that interrupt, destroy or limit the functionality of the Services or that may impact the ability of any PodOmatic user to access the Services.
    9. You will not access the Services through automated methods. The Services may only be used or accessed through an electronic device through manual control at all times.
    10. You may not send messages using the Services which do not correctly identify the sender and you may not alter the attribution of origin in electronic mail messages or postings.
    11. You will not share your password, let anyone else access your account, or do anything that might jeopardize the security of your account. You will not attempt to or actually access the Services by any means other than through the interfaces provided by PodOmatic.
    12. You will not attempt to or actually override any security component included in or underlying the Services.
    13. You will not attempt or engage in any action that directly or indirectly interferes with the proper working of or places an unreasonable load on PodOmatic’s infrastructure.
    14. You will not publish Content, or links to Content, that is:
      1. Pornographic, sexually explicit, or violent.
      2. Illegal (including stolen copyrighted material and material that infringes or has the potential to infringe the intellectual property rights of another).
      3. Reasonably likely to cause harm, or that could be reasonably considered as slanderous or libelous.
      4. Breaches another’s privacy.
    15. You will not publish Content that is spam, is machine- or randomly-generated, and/or contains unethical or unwanted commercial content designed to drive traffic to third party sites or boost the search engine rankings of third party sites, or to further unlawful acts (such as phishing), or mislead recipients as to the source of the material (such as spoofing).
    16. You verify that your country of residence is the same as your billing address.

    PodOmatic may determine in its sole discretion whether or not an account is in violation of any of these policies. Violation of any of these policies may result in user information tracking with such information being stored to identify the offending user. Offending users may be permanently restricted from holding an account or using the Services. If PodOmatic reasonably determines that your account is being used for illegal or fraudulent activity then your account may be immediately terminated and your financial data erased. We may also report you to law enforcement officials in the appropriate jurisdictions.

  17. Fees
  18. You may agree to a one (1) month, six (6) month, twelve (12) month or twenty-four (24) month contract agreement with PodOmatic. Some of the features on the Service require payment of fees, as described for each Service on the Site (“Fees”). If you sign up for these features, you must pay all applicable feature Fees. We reserve the right to change our prices and/or bundle certain parts of the Service together for pricing purposes, and may do so at any time. You authorize us to make any reasonably necessary inquiries to validate your account and financial information.

    All Fees are in USD and are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you are responsible for payment thereof. If you purchase any Services that we offer for a Fee, you consent to PodOmatic, or our third party service providers, storing your payment card information and you authorize us to charge you (a) any Fees for Services you may purchase, and (b) any applicable taxes in connection with your use of the Services to the payment card you provide, and you will reimburse us for all collection costs and interest for any overdue amounts. If the payment card you provide expires and you do not provide new payment card information or cancel your account, you authorize us to continue billing you and you will remain responsible for any uncollected Fees.

    AT THE END OF THE CONTRACT TERM, YOUR CONTRACT WILL AUTOMATICALLY RENEW FOR AN ADDITIONAL CONTRACT TERM UNTIL EXPLICITLY CANCELLED BY YOU, AND YOUR PREFERRED PAYMENT METHOD WILL BE CHARGED ACCORDINGLY. CANCELLATIONS MUST BE ISSUED VIA YOUR PODOMATIC ACCOUNT ONLY. ANY CANCELLATION MUST BE DONE THREE (3) DAYS PRIOR TO THE END OF THE CONTRACT TERM TO ALLOW FOR ADEQUATE PROCESSING TIME. NO REFUNDS WILL BE GIVEN FOR ANY DAYS REMAINING IN YOUR CURRENT BILLING CYCLE.

    YOU ARE SOLELY RESPONSIBLE FOR PROPERLY CANCELING YOUR ACCOUNT. AN EMAIL OR PHONE REQUEST TO CANCEL YOUR ACCOUNT IS NOT CONSIDERED CANCELLATION. YOU CAN CANCEL YOUR ACCOUNT AT ANY TIME BY CLICKING ON THE ACCOUNT LINK IN THE GLOBAL NAVIGATION BAR AT THE TOP OF THE SCREEN. THE ACCOUNT SCREEN PROVIDES A SIMPLE NO QUESTIONS ASKED CANCELLATION "GO BASIC" LINK. SUBSCRIBERS USING PAYPAL ARE RESPONSIBLE TO CONFIRM CANCELLATION VIA THE PAYPAL SITE. PODOMATIC IS NOT RESPONSIBLE FOR CHARGES OCCURRING FROM IMPROPERLY CANCELLED SUBSCRIPTIONS. IF YOU CANCEL THE SERVICE BEFORE THE END OF YOUR CURRENT PAID-UP MONTH, YOUR CANCELLATION WILL TAKE EFFECT IMMEDIATELY AND YOU WILL NOT BE CHARGED AGAIN. DELETING YOUR PODOMATIC ACCOUNT IS NOT THE SAME AS CANCELING YOUR PRO ACCOUNT.

    Only Services and features clearly indicated as "free" or "no charge" are free or without charge. It is not the responsibility of PodOmatic to provide free support for you in the use and operation of PodOmatic. All other applications, features, functionality and support provided by PodOmatic and its partners are provided for the fees described for each service on the Site (“Fees”) and you are liable for such Fees.

  19. Cancellation; Service Changes
  20. If you cancel the Service, your cancellation will take effect immediately. After cancellation, you will no longer have access to your web site and we may delete all information on your web site. We accept no liability for such deleted information or content.

    For as long as we continue to offer the Service, we will provide and seek to update, improve, and expand the Service. As a result, we allow you to access the Service as it may exist and be available on any given day and have no other obligations, except as expressly stated in these Terms. We may modify (e.g., change data storage or capacity limits), replace, refuse access to, suspend or discontinue the Service, partially or entirely, or change and modify prices for all or part of the Services for you or for all our users in our sole discretion. All of these changes are effective upon their posting on our site or by direct communication to you unless otherwise noted. We further reserve the right to withhold, remove and or discard any Content available as part of your account, with or without notice if deemed by us to be contrary to these Terms. For avoidance of doubt, we have no obligation to store, maintain, or provide you a copy of any Content that you or others provide when using the Service.

  21. Taxes
  22. You take full responsibility for all taxes and fees of any nature associated with Services.

  23. Termination
    1. Services may be terminated by us, without cause, at any time.
    2. Services may be terminated by you, without cause, by following the cancellation procedures set forth in Section 9 Fees.
    3. PodOmatic may terminate Services at any time, without penalty and without notice, if you fail to comply with any of the terms of this Agreement or the intellectual property protections applicable to these Services.
    4. Notice of termination of Services by PodOmatic may be sent to the contact e-mail associated with your account. Upon termination, PodOmatic has the right to delete all data, files, or other information that is stored in your account.

  24. Errors and Access to Site
  25. YOU ARE SOLELY RESPONSIBLE FOR THE ACCURACY AND APPROPRIATENESS OF ALL DATA AND CONTENT WITHIN YOUR PODCAST; INCLUDING SALES TAX CALCULATIONS, PRODUCT PRICING, AND PRODUCT DESCRIPTIONS, SHIPPING CHARGES, CONTACT INFORMATION, EMAIL COMMUNICATIONS, AND ELECTRONIC PAYMENT PROCESSING. PODOMATIC WILL NOT BE HELD RESPONSIBLE FOR INACCURATE INFORMATION AND ANY POTENTIAL DAMAGES CAUSED BY SUCH INACCURACIES. YOU FURTHER UNDERSTAND THAT PODOMATIC MAY NOT MAINTAIN COPIES OF FILES OR DOCUMENTS THAT ARE SENT BY YOU AND THAT YOU ARE SOLELY RESPONSIBLE FOR BACKING UP THIS DATA.

  26. Third Party Websites; Third Party Services; No Implied Endorsement
  27. The Site may contain links to other web sites owned by third parties ("Third Party Sites"). Please note that when you click on any of these links, you are entering another website for which we have no responsibility or control. You may also have the ability through the Site to login to accounts that you have for services provided by third parties (“Third Party Services”) or to link accounts for Third Party Services to your PodOmatic account. PodOmatic is not responsible for any activity occurring within Third Party Services, even if logged in through or linked to a PodOmatic account.

    You agree that we shall not be responsible for any loss or damage of any sort incurred as a result of your use of any Third Party Sites and/or Third Party Services, whether or not you were linked to or directed to a Third Party Site or Third Party Service through the Site. You acknowledge that Third Party Sites and Third Party Services may be subject to the applicable third party provider’s terms of service, and you are solely responsible for reviewing and complying with any such terms of service. In no event shall any reference on the Site to any third party, third party website or third party product or service be construed as an approval or endorsement by us of that third party, third party website or of any product or service provided by a third party.

  28. Disclaimer and Warranty
  29. THE SITE, SERVICES ARE PROVIDED “AS IS,” “AS AVAILABLE,” “WITH ALL FAULTS” AND WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, PODOMATIC AND ITS LICENSORS DISCLAIM ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, NEITHER PODOMATIC NOR ITS LICENSORS WARRANT THAT ACCESS TO THE SITE, THE SERVICES AVAILABLE ON OR THROUGH THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS, IF ANY, WILL BE CORRECTED; NOR DOES PODOMATIC OR ITS LICENSORS MAKE ANY REPRESENTATIONS ABOUT THE ACCURACY, RELIABILITY, CURRENCY, QUALITY, COMPLETENESS, USEFULNESS, PERFORMANCE, SECURITY, LEGALITY OR SUITABILITY OF THE SERVICES, THE SITE. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SITE AND YOUR RELIANCE UPON THE SERVICES IS AT YOUR SOLE RISK. IN ADDITION, PODOMATIC IS NOT RESPONSIBLE, AND MAKES NO REPRESENTATIONS OR WARRANTIES FOR THE DELIVERY OF ANY MESSAGES (SUCH AS EMAILS, POSTING OF ANSWERS OR TRANSMISSION OF ANY OTHER USER GENERATED CONTENT) SENT THROUGH THE SITE TO ANYONE.

    IN ADDITION, YOU ACKNOWLEDGE AND AGREE THAT ANY DATA, INFORMATION, CONTENT OR PRODUCTS CONTAINED IN OR MADE AVAILABLE IN CONNECTION WITH THE SERVICES IS NOT INTENDED AS A SUBSTITUTE FOR, THE KNOWLEDGE, EXPERTISE, SKILL AND JUDGMENT TAX, LEGAL OR OTHER PROFESSIONALS. THE SERVICES DO NOT PROVIDE TAX OR LEGAL ADVICE. YOU ARE RESPONSIBLE FOR OBTAINING SUCH ADVICE.

    FURTHER, PODOMATIC AND ITS LICENSORS MAKE NO REPRESENTATION OR WARRANTIES THAT THE SERVICES OR THE SITE ARE APPROPRIATE OR AVAILABLE FOR USE IN ALL GEOGRAPHIC LOCATIONS. IF YOU USE THE SITE, THE SERVICES OUTSIDE THE UNITED STATES OF AMERICA, YOU ARE SOLELY RESPONSIBLE FOR COMPLIANCE WITH ALL APPLICABLE LAWS, INCLUDING WITHOUT LIMITATION EXPORT AND IMPORT REGULATIONS OF OTHER COUNTRIES. NEITHER PODOMATIC NOR ANY THIRD PARTY PROVIDERS, PARTNERS OR AFFILIATES WARRANT THAT THE SITE, ITS SERVERS THE PRODUCTS OR THE SERVICES OR ANY E-MAIL SENT FROM THE SITE OR ANY THIRD PARTY PROVIDERS, PARTNERS OR AFFILIATES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

    THIS AGREEMENT APPLIES SOLELY TO THE SITE. AS PART OF THE SERVICES PROVIDED TO OTHER PODOMATIC USERS, WE HOST WEBSITES FOR CERTAIN THIRD PARTIES (“THIRD PARTY SITES”). THIRD PARTY SITES INCLUDE CONTENT GENERATED BY THIRD PARTIES AND ARE NOT UNDER THE MANAGEMENT AND CONTROL OF PODOMATIC. PODOMATIC IS NOT RESPONSIBLE FOR SUCH THIRD PARTY SITES, INCLUDING WITHOUT LIMITATION, THE ACCURACY, SUFFICIENCY, CORRECTNESS, RELIABILITY, VERACITY, COMPLETENESS OR TIMELINESS THEREOF, ANY LINK CONTAINED THEREIN, OR ANY CHANGES OR UPDATES THERETO, OR ANY GOODS OR SERVICES SOLD THEREON. YOUR ACCESS OR USE OF ANY THIRD PARTY SITE IS GOVERNED BY THE TERMS APPLICABLE TO SUCH THIRD PARTY SITE. THE HOSTING OF ANY THIRD PARTY SITE BY PODOMATIC DOES NOT IMPLY AN ENDORSEMENT THEREOF BY PODOMATIC, OR OF THE PROVIDER OF SUCH CONTENT OR SERVICES, OF ANY THIRD PARTY SITE.

  30. Limitation of Liability
  31. WE ARE NOT LIABLE TO YOU OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY PUNITIVE, EXEMPLARY, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY PERSONAL INJURY, LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA ON YOUR COMPUTER OR OTHERWISE) ARISING FROM OR IN CONNECTION WITH USE OF THE SITE, THE SERVICES, YOUR CONTENT, THE COMMERCIAL PRODUCTS OR ANY THIRD-PARTY USER GENERATED CONTENT AVAILABLE ON OR THROUGH THE SITE, WHETHER UNDER A THEORY OF BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, MALPRACTICE OR OTHERWISE, EVEN IF PODOMATIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU HEREBY RELEASE PODOMATIC AND HOLD PODOMATIC AND ITS PARENTS, SUBSIDIARIES, AFFILIATES, LICENSORS, AND THEIR OFFICERS, DIRECTORS, TRUSTEES, AFFILIATES, SUBCONTRACTORS, AGENTS AND EMPLOYEES, HARMLESS FROM ANY AND ALL CLAIMS, DEMANDS, AND DAMAGES OF EVERY KIND AND NATURE (INCLUDING, WITHOUT LIMITATION, ACTUAL, SPECIAL, INCIDENTAL AND CONSEQUENTIAL), KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES, PRODUCTS, SITE, YOUR CONTENT, COMMERCIAL PRODUCTS OR ANY THIRD-PARTY USER GENERATED CONTENT AVAILABLE ON OR THROUGH THE SITE. YOU HEREBY WAIVE THE PROVISIONS OF ANY STATE OR LOCAL LAW LIMITING OR PROHIBITING A GENERAL RELEASE.

  32. Exclusive Remedy
  33. IN THE EVENT OF ANY PROBLEM WITH THE SITE, THE SERVICES, YOU AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY IS TO CEASE USING THE SITE, AND THE SERVICES. UNDER NO CIRCUMSTANCES SHALL PODOMATIC, ITS AFFILIATES, OR LICENSORS BE LIABLE IN ANY WAY FOR YOUR USE OF THE SITE, THE SERVICES, YOUR CONTENT, THE COMMERCIAL PRODUCTS OR THIRD PARTY USER GENERATED CONTENT AVAILABLE ON OR THROUGH THE SITE, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS, ANY INFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTS OR OTHER RIGHTS OF THIRD PARTIES, OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF, OR RELATED TO, THE USE OF THE SITE, THE SERVICES, YOUR CONTENT, THE COMMERCIAL PRODUCTS OR ANY THIRD PARTY USER GENERATED CONTENT AVAILabLE ON OR THROUGH THE SITE. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the exclusions set forth above may not apply to you.

  34. Termination/Exclusion
  35. We may modify, replace, refuse access to, suspend or discontinue the Services, partially or entirely, or add, change and modify prices for all or part of the Services for you or for all our users at any time and in our sole discretion. All of these changes shall be effective upon their posting on the Site or by direct communication to you unless otherwise noted. We further reserve the right to withhold, remove and/or discard any content available as part of your account, with or without notice if deemed by us to be contrary to this Agreement. For avoidance of doubt, PodOmatic has no obligation to store, maintain or provide you a copy of any content that you or other users provide when using the Services.

  36. Indemnification
  37. You agree to indemnify, hold harmless, and defend PodOmatic and its licensors, suppliers, officers, directors, employees, agents, affiliates, subsidiaries, successors and assigns (collectively "Indemnified Parties") from and against any and all liability, loss, claim, damages, expense, or costs (including but not limited to attorneys' fees), incurred by or made against the Indemnified Parties in connection with any claim arising from or related to (i) your use (or anyone using your account) use of the Services or the Site, (ii) your Content, or (iii) any Commercial Products you offer on or through the Site or using our Services. This includes, but is not limited to, any breach or violation of this Agreement by you or anyone utilizing your account. You agree to fully cooperate at your expense as reasonably required by an Indemnified Party. Each Indemnified Party may, at its election, assume the defense and control of any matter for which it is indemnified hereunder. You shall not settle any matter involving an Indemnified Party without the consent of the applicable Indemnified Party.

  38. Amendments
  39. We reserve the right, in our sole discretion, to modify or replace any part of this Agreement at any time, effective upon the date of the change. In the event of any such change, we will post a notice on the Site that we have changed this Agreement. If you have a PodOmatic account, we may (but are not required to) provide you with notice via the email address that we have on file for you that we have changed this Agreement. You and we both understand that sometimes there are issues with email communication. We are not responsible if any email notice gets caught by your SPAM filter and you do not see it, if you have given us the wrong email address or failed to update your address, or if there are other communications issues that prevent email from reaching you. Therefore, we encourage you to frequently visit this page periodically to monitor any changes. Your continued use of or access to the Services following the posting of any changes to this Agreement constitutes acceptance of those changes.

    We may also, in the future, offer new services and/or features through Site. For the avoidance of doubt, such new features and/or services shall be subject to the terms and conditions of this Agreement.

  40. Disputes
  41. The formation, interpretation and performance of this Agreement and any disputes arising out of it shall be governed by the substantive and procedural laws of the state of California without regard to its rules on conflicts or choice of law and, to the extent applicable, the laws of the United States of America. The exclusive jurisdiction and venue for actions related to the subject matter hereof shall be the state and federal courts located in San Francisco, California, and you hereby submit to the personal jurisdiction of such courts. You hereby waive any right to a jury trial in any proceeding arising out of or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

  42. Privacy
  43. We encourage you to read the Privacy Policy, and to use the information it contains to help you make informed decisions. Please also note that certain information, statements, data and content (such as photographs) which you post to the Site are likely to reveal your gender, ethnic origin, nationality, age, and/or other personal information about you. You acknowledge and agree that your submission of such information is voluntary on your part. Further, you acknowledge, consent and agree that we may access, preserve, and disclose your registration and any other information you provide if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary in our opinion Disclosures of user information to third parties are further addressed in the Privacy Policy.

  44. Other
  45. You acknowledge that a violation or attempted violation of any of this Agreement will cause such damage to PodOmatic as will be irreparable, the exact amount of which would be impossible to ascertain and for which there will be no adequate remedy at law. Accordingly, you agree that PodOmatic shall be entitled as a matter of right to an injunction issued by any court of competent jurisdiction, restraining such violation or attempted violation of these terms and conditions by you, or your affiliates, partners, or agents, as well as to recover from you any and all costs and expenses sustained or incurred by PodOmatic in obtaining such an injunction, including, without limitation, reasonable attorney's fees. You agree that no bond or other security shall be required in connection with such injunction.

    In no event shall you be entitled to rescission, injunctive or other equitable relief, or to enjoin or restrain the operation of PodOmatic, the exploitation of any advertising or other products issued in connection therewith, or the exploitation of the Site or any content used or displayed through the Site.

  46. Miscellaneous
    1. If any portion of this Agreement is found to be unenforceable, the remaining portion will remain in full force and effect.
    2. If we fail to enforce any of this Agreement, it will not be considered a waiver.
    3. Any amendment to or waiver of this Agreement must be made in writing and signed by us.
    4. You will not transfer any of your rights or obligations under this Agreement to anyone else without our prior written consent.
    5. All of our rights and obligations under this Agreement are freely assignable by us in connection with a merger, acquisition, or sale of assets, or by operation of law or otherwise.
    6. This Agreement does not confer any third party beneficiary rights.
    7. A printed version of this Agreement and of any related notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

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