PodSearch™ Terms and Conditions

The PodSearch™ Terms and Conditions (“T&C”), as may be modified or amended periodically by PodSearch, Inc., its parent(s), subsidiaries, affiliates, and their respective directors, officers, employees, and agents (collectively, “PodSearch”), is a legally binding agreement made by and between PodSearch and you, personally and, if applicable, on behalf of the entity for whom you are using any of the PodSearch™ services. The T&C governs your use of all PodSearch™ services, including the PodSearch.com website (the “PodSearch™ Site”) and the PodSearch™ mobile application (the “PodSearch™ Mobile App”) so please read it carefully. The Effective Date of this Agreement is May 2, 2017.

BY ACCESSING OR USING ANY PART OF THE SERVICES, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD AND AGREED TO BE BOUND BY THE T&C, WHICH CONTAINS WAIVER OF CLASS-ACTION RIGHTS AND LIMITS PODSEARCH™’S LIABILITY TO YOU. IF YOU DO NOT AGREE TO BE SO BOUND, YOU MAY NOT ACCESS OR USE ANY SERVICE. UNLESS OTHERWISE EXPRESSLY STATED, PODSEARCH™ DISCLAIMS ALL WARRANTIES WHETHER PROVIDED BY PODSEARCH™, ITS AFFILIATES, OR ITS RESPECTIVE EMPLOYEES AND AGENTS.

Learn more about the terms that apply to you depending on the subsection that applies, in addition to the PodSearch™ General Terms and Conditions

              All Registered Users click here

              Podcasters click here

              Companies Interested in Advertising on Podcasts click here

              Mobile App Users, click here

              Electronic Commerce Transactions, click here

              For PodSearch’s Privacy Policy, click here

1. Definitions

1.1         Registered Users. Registered Users include Listeners, Podcasters, and Companies Interested in Advertising on Podcasts (“Companies”).

1.1.1        Listeners. “Listeners” are individuals who wish to identify podcasts of interest to them by searching the PodSearch™ Directory.

1.1.2        Podcasters. “Podcasters” produce podcasts or are authorized representatives for podcasts and wish to make their podcasts available to a wider audience of Listeners by listing their podcasts in the PodSearch™ Directory, placing banner advertisements on the PodSearch™ Site or placing display advertisements in PodSearch™ marketing materials.

1.1.3        PodSearch™ Display Advertisers. Approved PodSearch™ Display Advertisers may, at the discretion of PodSearch, place banner ads in the PodSearch™ Directory and display ads in PodSearch™ marketing materials (possibly including, but not limited to, enewsletters, social media posts and how-to videos).

1.1.4        Companies. “Companies” wish to contact Podcasters, using PodSearch DIY™, to inquire about advertising and sponsorship opportunities.

1.1.5        Mobile App Users. “Mobile App Users” are Registered Users who download the PodSearch™ Mobile App.

1.2         Services

1.2.1        PodSearch™ Directory. The PodSearch™ Directory is a searchable directory of podcasts accessible to all Registered Users.

1.2.2        PodSearch DIY™. PodSearch DIY™ gives Companies the ability to contact Podcasters to inquire about advertising sponsorship opportunities by clicking the “contact” button in the PodSearch™ Directory.

1.2.3        PodSearch™ Listing Services. PodSearch™ Listing Services allow Podcasters to include their podcasts in the PodSearch™ Directory.

1.2.4        PodSearch™ Display Advertising Services. PodSearch™ Display Advertising Services allow Podcasters and, at the discretion of PodSearch, approved PodSearch™ Display Advertisers, to place banner ads in the PodSearch™ Directory and display ads in PodSearch™ marketing materials (possibly including, but not limited to, enewsletters, social media posts and how-to videos).

1.2.5        The Services. Collectively, the PodSearch™ Directory, PodSearch DIY™, PodSearch™ Listing Services, and PodSearch™ Display Advertising Services shall be referred to herein as the “Services.”

1.3         Accounts

1.3.1        Listener Accounts. Listener Accounts allow access to the PodSearch™ Directory. Listeners Accounts are created by Listeners by submitting their email address, creating a user name and password, and accepting the T&C. Listeners may also be asked to provide their age, gender and zip code. Listeners may cancel their free account by contacting PodSearch™ customer service.

1.3.2        Advertiser Accounts. Advertiser Accounts allow access to PodSearch DIY™. Advertiser Accounts are created by Companies by accepting the T&C. Companies may cancel their free Advertiser account by contacting PodSearch™ customer service.

1.3.3        Podcaster Accounts. Podcaster Accounts allow access to PodSearch™ Listing and Display Advertising Services. Podcaster Accounts are created by Podcasters and PodSearch™ Display Advertisers by submitting their email address, creating a user name and password, accepting the T&C, and submitting the applicable subscription or advertising fees. Podcasters and PodSearch™ Display Advertisers may cancel their account by contacting PodSearch™ customer service.

1.3.4        All information submitted in connection with creating any account is subject to the PodSearch™ Privacy Policy.

2.         PodSearch™ General Terms and Conditions

2.1         About the Services and the Terms

2.1.1        The Services. The Services allow Registered Users to, among other things, identify podcasts that may be of interest to the user, access information about how to contact Podcasters to inquire about advertising and sponsorship opportunities, and include podcasts and/or place banner ads in the PodSearch™ Directory or display ads in PodSearch™ marketing materials. The Services may provide display ads alongside search results and may not explicitly distinguish between these two categories of information.

2.1.2        Eligibility. To use the Services, you must be, and represent and warrant that you are, of legal age (18 years and over) and of legal competence to enter into a binding agreement with PodSearch, and are not otherwise prohibited from using or receiving the Services in accordance with the T&C. By using the Services on behalf of any third party, you are representing to us that you are an authorized representative of that third party and that your use of the Services constitutes their acceptance of the T&C.

2.1.3        Additional Terms. PodSearch provides a variety of Services to Listeners, Podcasters, PodSearch™ Display Advertisers, Companies, and Mobile App Users. Some Services are subject to additional terms, which are listed below or presented to you when you use such Services. If you are using or would like to use any of the following Services, please follow the links below to access those additional terms. If there is a conflict between the T&C and the additional terms for a particular Service, the additional terms will control for that Service. You may not use any of these Services unless you agree to the applicable additional terms. Links to certain additional terms follow:

2.1.4        Nature of PodSearch™ Listing Services, PodSearch™ Display Advertising Services, and PodSearch DIY™. The PodSearch™ Directory displays listings, advertising and, for registered users of PodSearch DIY™, contact links to the Podcasters who have opted to include that link in their listing form. PodSearch relies upon Podcasters and PodSearch™ Display Advertisers for the accuracy, completeness and honesty of the information provided. Under no circumstances does PodSearch endorse and/or have any other connection with the Podcasters or PodSearch™ Display Advertisers that provide information provided on the PodSearch™ Site.

2.1.5        Changes to Terms. PodSearch may periodically modify and supplement the T&C, with or without notice to you. You are responsible for regularly checking the T&C for revisions.

2.2         Using the Services.

2.2.1        Grant of Rights. Subject to your compliance with the terms and conditions of the T&C, PodSearch grants you a limited, non-exclusive right to use the Services, and any content and materials made available to you in connection with your use of the Services, only for your non-commercial, informational purposes and for such other purposes (and subject to such further limitations) as may be provided in the T&C (including any additional terms applicable to a particular Service) or any instructions for use that PodSearch may provide from time to time.

2.2.2        Termination. You may stop using the Services at any time by contacting PodSearch™ customer service. PodSearch may terminate your access to the Services in whole or in part if it reasonably believes you have breached the T&C, or any other related terms, guidelines or policies. Following termination, you will not be permitted to use the Services. If your access to the Services is terminated, PodSearch may exercise whatever means it deems necessary to prevent unauthorized access to the Services, including, but not limited to, technological barriers, IP mapping, and direct contact with your Internet service provider. The T&C will survive indefinitely unless and until PodSearch chooses to terminate it, regardless of whether any account you open is terminated by you or PodSearch or whether you continue to use or continue to have the right to use the Services. Certain Services are purchased upfront on a monthly or yearly basis, depending on the service purchased. No refunds will be provided for terminated services.

2.2.3        Intellectual Property Rights. Using the Services does not give you ownership of, or any rights to, any materials or content that may be provided to you in connection with your use of the Services, all of which is owned by PodSearch, its licensors, or other entities, and is protected by copyright and other intellectual property rights. Except as expressly set forth in the T&C, you may not use, display, perform, copy, reproduce, represent, adapt, create derivative works from, distribute, transmit, sublicense or otherwise circulate, by any means, any materials or content made available to you in connection with your use of the Services, without express permission from the owner or PodSearch, as applicable. “PodSearch” is a trademark owned by PodSearch, Inc. Using the Services does not give you any rights to use the PodSearch™ trademark, or any other service marks, trade dress or trade names used on the PodSearch™ Site or in connection with the Services, without express permission from PodSearch or the owner, as applicable.

2.2.4        Prohibited Conduct. You may use the Services and any materials or content made available to you in connection with your use of the Services only as expressly permitted by the T&C and only in a manner that does not interfere with PodSearch’s right or ability to provide the Services or any third party’s right or ability to use or enjoy the Services. Without limitation, you may not: (i) infringe, violate, or transgress any right of any party; (ii) attempt to bypass, disrupt or interfere with the security, provision or use of the Services; (iii) impersonate another person or entity, misrepresent your affiliation with a person or entity (including PodSearch), or use a false identity; (iv) attempt to obtain unauthorized access to the Services; (v) engage, directly or indirectly, in any type of unsolicited communication; (vi) collect, manually or through an automatic process, information about other users without their express consent or other information relating to the Services; (vii) submit false or misleading information to PodSearch; (viii) violate any law, rule, or regulation; (ix) use any PodSearch™ Marks or other portion of the Services (including in connection with meta tags or other “hidden text”) in advertising, promotions, or for other commercial purposes; (x) use the PodSearch.com domain name or any domain name that is confusingly similar to this or another PodSearch™ domain name as a pseudonymous return e-mail address for any communications that you transmit from another location or through another service; (xi) link to or “frame” the PodSearch™ Site (including deep linking to a specific portion of any PodSearch™ Site) or overlay content on the Services; (xii) conduct script searches or use search results of the Services in a manner that results in the automated display of any material or other information on a third-party website; (xiii) use the Services to compile information about a product or service for use in connection with a listing for a competitive product or service; or (xiv) assist any third party in engaging in any activity prohibited by the T&C. PodSearch reserves the right, but not the obligation, to monitor the Services for the purpose of determining that your usage is in compliance with the T&C.

2.2.5        Changes to the Services. PodSearch may change or discontinue any of the Services at any time without notice or liability to you or any third party.

2.3         Privacy Policy

You agree that PodSearch may collect, use, and share your information in accordance with PodSearch™’s Privacy Policy.

2.4         Content and Feedback

2.4.1        Feedback. If you submit ideas, suggestions or anything else about the Services (such as ways to improve the Services) to PodSearch, you agree that PodSearch can use or publish that feedback for any reason, without payment or other compensation to you, forever and throughout the world. You agree not to submit any feedback to PodSearch in which you do not wish to grant such rights.

2.4.2        Third Party Content. PodSearch may provide access to third-party content, such as links to third-party websites. PodSearch does not: (i) undertake any obligation to review, screen, or investigate materials or other information submitted or otherwise provided by third parties in connection with the Services; (ii) undertake any obligation to review, screen, or investigate third parties who provide links to their websites (or the websites of other third parties) or the content of any such websites; or (iii) endorse any positions, ideas, ideologies, concepts, or opinions contained in such third-party content. PodSearch is not responsible for any third-party materials or other information, including whether the information is accurate or suitable or available for your use, for the performance or operation of any third-party website, for any products or services advertised or sold by any third party (including on or through a third party’s website), or for any other action or inaction by any third party. Your use of any such third-party websites will be subject to those terms to which you and the third party agree. PodSearch will have the right to delete or modify any third-party content in its sole discretion. You assume all risks arising out of or resulting from your transaction of business over the Internet, and you agree that PodSearch is not responsible or liable for any loss or damage resulting from your use of third-party content, websites, or services.

2.4.3        Objectionable Content. If you become aware of any objectionable third-party content, you may contact PodSearch™ customer service to report it. PodSearch will address such requests if and to the extent it deems appropriate, in its sole discretion.

2.4.4        DMCA/Intellectual Property Policy. PodSearch respects the rights of others. If you believe any content available through the Services infringes your rights, you must submit a complaint through our Intellectual Property Policy.

2.5         DISCLAIMERS, EXCLUSIONS, LIMITATIONS, AND INDEMNITY.

2.5.1        DISCLAIMER OF WARRANTIES. PODSEARCH PROVIDES THE SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS. PODSEARCH DOES NOT REPRESENT OR WARRANT THAT THE SERVICES, THEIR USE, OR ANY INFORMATION PROVIDED IN CONNECTION WITH THE SERVICES: (I) WILL BE UNINTERRUPTED OR SECURE, (II) WILL BE FREE OF DEFECTS, DELAYS, INACCURACIES OR ERRORS, (III) WILL MEET YOUR REQUIREMENTS, OR (IV) WILL OPERATE IN THE CONFIGURATION OR WITH HARDWARE OR SOFTWARE YOU USE. PODSEARCH MAKES NO WARRANTIES OTHER THAN THOSE MADE EXPRESSLY IN THIS T&C, AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, AND NON-INFRINGEMENT. PODSEARCH MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY THIRD-PARTY MATERIALS, INFORMATION, GOODS, OR SERVICES, WHETHER RECEIVED OR ACCESSED VIA ANY LINKS PROVIDED BY OR IN CONNECTION WITH THE SERVICES OR OTHERWISE. PODSEARCH MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY GOODS OR SERVICES WHICH MAY BE PURCHASED OR OBTAINED FROM PODSEARCH OR ANY THIRD PARTY AS A RESULT OF USING THE SERVICES.

2.5.2        EXCLUSION OF DAMAGES. PODSEARCH WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO OR CONNECTED WITH THE USE OF THE SERVICES, REGARDLESS OF THE CAUSE OF ACTION ON WHICH THEY ARE BASED, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING, INCLUDING WITHOUT LIMITATION, THE COST OF ANY GOODS OR SERVICES WHICH MAY BE PURCHASED OR OBTAINED AS A RESULT OF USING THE SERVICES.

2.5.3        LIMITATION OF LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF PODSEARCH™ ARISING FROM, RELATING TO, OR IN CONNECTION WITH THIS T&C OR THE SERVICES EXCEED THE GREATER AMOUNTS THAT YOU PAID PODSEARCH FOR YOUR USE OF THE SERVICES.

2.5.4        STATE LAW RIGHTS. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. AS SUCH, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. UNLESS LIMITED OR MODIFIED BY APPLICABLE LAW, THE FOREGOING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS APPLY.

2.5.5        Indemnity. You agree to indemnify, defend and hold PodSearch and its employees, representatives, agents, attorneys, affiliates, directors, officers, members, managers and shareholders (“Indemnified Parties”) harmless from any damage, loss, cost or expense (including without limitation, attorneys’ fees and costs) incurred in connection with any third-party claim, demand or action (“Claim”) brought or asserted against any of the Indemnified Parties: (i) alleging facts or circumstances that would constitute a breach by you of any provision of the T&C or (ii) arising from, related to, or connected with your use of the Services. If you are obligated to provide indemnification pursuant to this provision, PodSearch may, in its sole and absolute discretion, control the disposition of any Claim at your sole cost and expense. Without limiting the foregoing, you may not settle, compromise or in any other manner dispose of any Claim without the consent of PodSearch.

2.6         Disputes

2.6.1        Applicability of Section. The terms of this Section 2.6 will apply to all disputes that may arise out of, are connected with or relate to the T&C or the Services, subject only to the following three exceptions: (1) if PodSearch reasonably believes that you have in any manner acted, or failed to act, in any manner that may cause harm to PodSearch or any third party, PodSearch may seek injunctive or other appropriate relief in any court of competent jurisdiction; (2) certain Services are subject to different dispute resolution provisions and/or choice-of-venue provisions, which are provided for in the terms applicable to such Services; or (3) any dispute may, at the option of the claiming party, be resolved in small claims court in Los Angeles, California, provided that all claims by all parties in the dispute fall within the jurisdiction of the small claims court, but must first be submitted to the informal resolution process in Section 2.6.2.  Furthermore, in no event will the terms of this section limit PodSearch’s ability to investigate complaints or reported violations of the T&C or to take any action PodSearch deems necessary and appropriate to mitigate actions against PodSearch, including reporting any suspected unlawful activity to law enforcement officials, regulators, or other third parties.

2.6.2        Informal Resolution.  If you have any dispute with PodSearch or any related third party, arising out of, relating to, or connected with the Services, you agree to contact PodSearch™ customer service; provide a brief, written description of the dispute and your contact information (including your registered email address, if your dispute relates to an account); and give PodSearch 30 days within which to resolve the dispute to your satisfaction.

2.6.3        Limitation of Actions. Regardless of any statute or law to the contrary, any claim or cause of action you may have arising out of, relating to, or connected with your use of the Services, must be filed within one calendar year after such claim or cause of action arises, or be forever barred.

2.7         Force Majeure

PodSearch will not be liable for failing to perform under the T&C because of any event beyond its reasonable control.

2.8         General

2.8.1        The T&C and the governance, enforcement, and performance hereof will be governed, construed and applied in all respects by the laws of the State of California without regard to any provision governing conflicts of law.

2.8.2        The T&C supersedes all prior and contemporaneous agreements and understandings between you and PodSearch relating to the Services. You may not transfer your rights or obligations under the T&C without the prior written consent of PodSearch. PodSearch may freely do so, in whole or in part.

2.8.3        The T&C will be binding upon the successors and permitted assigns of you and PodSearch. The T&C do not create any third-party beneficiary rights.

2.8.4        The T&C will be interpreted as if equally drafted by PodSearch and you.

2.8.5        A party’s failure or delay in exercising any right, power or privilege under the T&C will not waive its rights to exercise such right, power, or privilege in the future, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise of such right, power, or privilege, or the exercise of any other right, power, or privilege under the T&C.

2.8.6        You and PodSearch are independent contractors, and no agency, partnership, joint venture, employee-employer relationship is intended or created by the T&C.

2.8.7        The invalidity or unenforceability of any provision of the T&C will not affect the validity or enforceability of any other provision of the T&C, all of which will remain in full force and effect.

2.9         Contacts

By providing your email address, you agree that PodSearch may send emails to you related to the Services. If you do not wish to receive general marketing emails, you can opt out by following the instructions in the message. PodSearch may send any legal notices to you via email. To give legal notice to PodSearch, please send written communication to:

 

PodSearch, Inc.

Attn: Legal Department

21550 Oxnard Street Suite 460, Woodland Hills, CA 91367

3.         Terms for Registered Users

This Section applies to all Listener Accounts, Advertiser Accounts and Podcaster Accounts.

3.1         Passwords and Account Information

3.1.1        You are solely responsible for keeping your password and all other account information confidential and for all use of your username and password, including, without limitation, any use by any unauthorized third party. It is your responsibility to maintain the security of your mobile device(s) from unauthorized access.

3.1.2        PodSearch employees will never ask for your password. If you are asked for your password, or if you believe someone may have obtained your password, you must contact PodSearch™ customer service.

3.1.3        You must provide and keep PodSearch up-to-date with accurate information, including your name and email address. All such personal information, as well as other information you provide to register, is subject to the Privacy Policy, incorporated into this Agreement.

3.1.4        PodSearch, in its sole and absolute discretion, may terminate access to your account for any reason (including reasons related to unlawful or unauthorized usage). PodSearch has no obligation to retain a record of your account or any data, preferences, or other information that you may have stored for your convenience by means of your account or the Services.

3.1.5        By creating an account, you are deemed to have “opted-in” to all tracking, collection, use, and sharing permitted under our Privacy Policy.

3.1.6        You agree to receive emails from us periodically relating to your account and the Services. You may change your email preferences by clicking the “unsubscribe” link provided at the bottom of any marketing email that you receive. Without limitation, you consent to PodSearch's right to retain any of your responses to emails you receive from PodSearch.

4.         Terms for PodSearch DIY™

This Section applies to Companies who create an Advertiser account to access PodSearch DIY™. PodSearch DIY™ allows Companies to see and access “contact” buttons in the PodSearch™ Directory and to submit inquiries to Podcasters about advertising and sponsorship opportunities. Companies will also have access to other additional features, such as podcast industry research slides, at PodSearch’s discretion.

4.1         Advertiser Account.  To gain access to PodSearch DIY™, the Company must create an Advertiser Account by submitting an individual’s name, a company name, an email address, and by creating a user name and password, and accepting the T&C.

4.2         Termination by PodSearch. PodSearch may terminate this Agreement in whole or in part, at any time upon written notice, including via email, to the Company.

4.3         Disclaimers

4.3.1        PodSearch makes NO warranty or commitment regarding the characteristics of any podcast, including with respect to traffic, usage statistics, or conversion or interaction rates related to advertising placed on the podcast. Company acknowledges that it is not relying on: (a) any representation or warranty concerning revenue, profit, return on investment, or results to be generated from any advertisement placed on any podcast of any Podcaster; (b) any representation or warranty regarding either the number, makeup, or distribution of people who will listen to or otherwise be exposed to any advertisement placed on any podcast of any Podcaster; (c) any representation, warranty, or covenant concerning the quantity, quality and/or validity of traffic, impressions, or interactions with or leads generated by any advertisement placed on any podcast of any Podcaster; or (d) any custom or prior course of dealing.  

4.3.2        COMPANY ASSUMES ALL RISKS CONCERNING THE FUNCTIONALITY, PERFORMANCE, AND RESULTS OF THE PLACEMENT OF ANY ADVERTISEMENT ON ANY PODCAST OF ANY PODCASTER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, PODSEARCH™ MAKES NO REPRESENTATIONS, WARRANTIES, OR GUARANTEES TO COMPANY OF ANY KIND, EITHER EXPRESS OR IMPLIED (INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, OR OTHER WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE), REGARDING THE FUNCTIONALITY, PERFORMANCE, OR RESULTS OF PODSEARCH™ DIY™ OR OTHERWISE UNDER OR RELATED TO THIS AGREEMENT.

4.4         Company’s Warranties, Covenants, and Consents; Indemnification.

Company warrants and covenants to PodSearch that:

4.4.1        Company owns or otherwise controls all necessary rights to any trademark, service mark, logo, name, message, data, image, text, photos, graphics, audio, video, or other material or intellectual property submitted to any Podcaster for the purpose of placing advertising on the Podcaster’s  podcast(s);

4.4.2        Company shall indemnify and hold harmless PodSearch against all claims, actions, losses, expenses, damages, costs, and liabilities, including professional advisors’ fees and other expenses incurred in the defense of any claims arising from this Agreement, including in connection with any claims arising from Company’s placement of any advertisement on any podcast of any Podcaster, or otherwise arising from any agreement or contacts between Company and Podcaster.

5.         Terms for PodSearch™ Listing and Display Advertising Services

This Section applies to Podcasters and PodSearch™ Display Advertisers who list podcasts in the PodSearch™ Directory (“Listing Services”) and/or place advertisements in the PodSearch™ Directory (“Display Advertising Services”).

5.1         Subscription Fee and 30-Day Term for Listing Services.

5.1.1        Podcaster Account. To gain access to the PodSearch™ Listing Services, Podcasters must create a Podcaster Account by submitting their name, email address, creating a user name and password, and accepting the T&C.

5.1.2        Subscription Fee for Listing Services. To initiate PodSearch™ Listing Services, Podcaster must submit advanced payment, via credit card, of the standard $9.99 Listing Services monthly subscription fee per podcast. The standard $9.99 subscription fee shall entitle the Podcaster to list one podcast in the PodSearch™ Directory for 30 days (the “Listing Services Term”). Podcasters may list as many podcasts as they are authorized to represent by paying additional subscription fees of $9.99 per podcast per month. Future subscription fees for PodSearch™ Listing Services are subject to change at PodSearch’s discretion. 

5.1.3        Recurring Payments. Listing Services shall be provided on a month-to-month basis. A Podcaster may opt out of automatically recurring payments by contacting PodSearch™ customer service at least 3 business days prior to the next upcoming automatic recurring payment date. Podcasters may also be able to opt out of automatically recurring payments by accessing its Podcaster Account and modifying the payment options. If the Podcaster does not opt out, then the Listing Services Term will automatically renew for a like term under the then-current Terms & Conditions.

5.1.4        Commencement of Term. The first 30-day Listing Services Term shall commence on the first day on which a podcast submitted by the Podcaster appears in the PodSearch™ Directory.

5.1.5        Termination by Podcaster. If a Podcaster chooses to discontinue the Listing Services before the end of the then-current Term, it may notify PodSearch via customerservice@podsearch.com; however, PodSearch will provide no refund of any portion of the subscription fee for the month in which the services were cancelled.

5.1.6        Termination by PodSearch™. PodSearch may terminate this Agreement in whole or in part, at any time, upon written notice, including via email, to the Podcaster.

5.2         Fees for Display Advertising Services.

5.2.1        PodSearch may offer Podcasters, and, at its sole discretion, other approved third parties (“PodSearch™ Display Advertisers”), the opportunity to place banner ads in the PodSearch™ directory, or display ads in PodSearch marketing materials (such as e-newsletters, social media posts and how-to videos) at cost-per-thousand (“CPM”) or flat rates to be announced.  Pricing is subject to change at the discretion of PodSearch.

5.3         Creating PodSearch™ Directory Listings, Banner Ads and Display Ads.

5.3.1        Podcaster Account. To gain access to the PodSearch™ Display Advertising Services, Podcasters and PodSearch™ Display Advertisers must create a Podcaster Account by submitting their name, email address, creating a user name and password, and accepting the T&C.

5.3.2        PodSearch™ Directory Listings.  Once payment of the subscription fee has been accepted, the Podcaster or PodSearch™ Display Advertiser can access its Podcaster Account to enter podcasts to include in the PodSearch™ Directory, to provide information relating to each podcast, to provide contact information that will be accessible by registered users of PodSearch DIY Services™, and or, in the case of PodSearch™ Display Advertisers, information relating to the products or services to be advertised. Information that may be submitted by Podcaster Account users may include some or all of the following: subject categories, written descriptions, links to external websites and social media, listener data, artwork, and/or banner or display ad submissions as described in paragraph 5.3.3 (“Listing and Advertising Materials”). Information about an individual podcast that is accessible to Listeners by searching the PodSearch™ Directory is referred to herein as a “Listing.” Listings and podcast profile pages will be created using Listing and Advertising Materials submitted by the Podcaster, pursuant to procedures established by PodSearch for that purpose.

5.3.3        Banner Ads.  PodSearch may offer Podcasters and PodSearch™ Display Advertisers the opportunity to place banner ads in the PodSearch™ Directory by accessing the appropriate Banner Ad Placement section located in the Podcaster Account. Full creative and redirect URLs will be submitted by the Podcaster or PodSearch™ Display Advertiser pursuant to procedures established by PodSearch for that purpose.

5.3.4        By submitting Listing and Advertising Materials to PodSearch™, Podcaster certifies that:

5.3.4.1       At least 75% of the podcast’s listeners reside in the United States unless a different country of origin is specified by the Podcaster in the listing form; and

5.3.4.2       Data provided by the Podcaster regarding average downloads per episodes refers to downloads occurring in the United States only.

5.3.5        Podcasters may access their Podcaster Account at any time to enter additional podcasts, to provide Listing and Advertising Materials therefor, or to revise Listing and Advertising Materials already submitted for current Listing(s). To delete a Listing entirely from PodSearch™ (i.e., to remove all completed fields for that Listing from the back end of the site), Podcasters may contact PodSearch™ customer service. Podcasters may also be able to delete a Listing by accessing their Podcaster Accounts.

5.4         PodSearch™ Directory Listings and Advertisements.

5.4.1        Owners of Registered User Accounts will be able to search the PodSearch™ Directory for podcasts according to subject categories and/or other information provided by Podcasters. Only Advertiser Account owners will be able to access fillable forms to contact Podcasters directly.

5.4.2        Podcasters and PodSearch™ Display Advertisers are responsible for, and shall certify the accuracy, completeness and honesty of, all Listing and Advertising Materials provided to PodSearch.

5.4.3        Banner ads tied to subject categories selected by the Podcasters or PodSearch™ Display Advertisers may appear on the same screen as Listing search results generated by one or more subject categories.

5.4.4        Listings generally will appear in the PodSearch™ Directory within 2 business days of acceptance of the Listing and Advertising Materials by PodSearch. Banner Ads generally will appear within 2 business days of acceptance by PodSearch.

5.4.5        Podcasters and PodSearch™ Display Advertisers acknowledge and agree that PodSearch shall not be liable for any delays or omissions in placing Listings and banner ads in the PodSearch™ Directory, or for declining to include any podcast, banner ad, display ad, or related Listing and Advertising Materials in the PodSearch™ Directory for any reason whatsoever.

5.4.6        PodSearch reserves the right to review and approve Listings, banner ads, and related Listing and Advertising Materials before making them accessible in the PodSearch™ Directory. Podcasters and PodSearch™ Display Advertisers waive any right to re-inspect, re-review or re-approve any Listing or banner ad prior to inclusion in the PodSearch™ Directory.

5.4.7        A Podcaster’s payment obligations hereunder shall not in any way be contingent upon inclusion of any particular Listing and Advertising Materials and/or design elements in any Listing, podcast profile page,  banner ad, or display ad.

5.4.8        PodSearch may change the organization, structure, content, appearance, functionality, and/or other characteristics of the PodSearch™ Directory without notice or obligation to Podcasters or PodSearch™ Display Advertisers. PodSearch may position Listings, banner ads, and display ads in the PodSearch™ Directory and PodSearch marketing materials in any location, in any sequence, and in association with any headings or subject categories as PodSearch deems appropriate.

5.4.9        PodSearch may collect, disclose, and use data concerning Registered Users’ interactions with Listings, links, contact buttons, and banner ads, in accordance with PodSearch’s Privacy Policy.

5.4.10    Except as otherwise provided herein, as between the parties, PodSearch owns all IP Rights in and to the Listing and Display Advertising Services and all information, materials, logos, software, or other tools or information used to develop or display the Listings and banner ads or to provide the Services.

5.5         Distribution via Mobile App and Email.

5.5.1        PodSearch may distribute Listings and banner ads over the PodSearch™ Mobile App.

5.5.2        Listing and Advertising Materials may be used for marketing purposes by PodSearch™, including by featuring such information in email communications to Registered Users and on PodSearch™’s social media accounts.

5.5.3        By submitting Listing and Advertising Materials to PodSearch™, Podcasters and PodSearch™ Display Advertisers expressly authorize distribution of Listings, banner ads, display ads, and Listing and Advertising Materials via the PodSearch™ Mobile App and to Registered Users via email during the time Podcaster or PodSearch™ Display Advertiser uses the Listing and/or Display Advertising Services. 

5.5.4        Podcasters and PodSearch™ Display Advertisers, for themselves and any third party with an interest in the Listing and Advertising Materials, grant PodSearch a nonexclusive, worldwide license, including the right to sublicense, to copy, distribute, create derivative works based upon, publicly display, publicly perform, reproduce, promote, resize, rearrange, modify, and otherwise use the Listing and Advertising Materials, on the PodSearch™ Mobile App, in email communications to Registered Users, and on PodSearch’s social media accounts, provided that such use is pursuant to this Agreement.

5.6         Podcasters’ and PodSearch™ Display Advertisers’ Warranties, Covenants, and Consents.

Podcasters and PodSearch™ Display Advertisers warrant and covenant to PodSearch that:

5.6.1        Podcaster or PodSearch™ Display Advertiser owns or otherwise controls all necessary rights to any trademark, service mark, logo, name, message, data, image, text, photos, graphics, audio, video, or other material or intellectual property submitted to PodSearch for inclusion as a Listing, banner ad, or display ad in the PodSearch™ Directory or PodSearch marketing materials, and the Podcaster or PodSearch™ Display Advertiser will maintain such ownership or control throughout the term of this Agreement;

5.6.2        Podcaster or PodSearch™ Display Advertiser is at all times solely responsible for the truthfulness and accuracy of Listing and Advertising Materials submitted to PodSearch.

5.6.3        Neither Podcaster nor PodSearch™ Display Advertiser will submit any Listing and Advertising Materials, or use the PodSearch™ Listing or Display Advertising Services in any manner, that: (i) violates any law, regulation, or industry guidelines; (ii) is harmful to minors, threatening, harassing, abusive, defamatory, slanderous, vulgar, violent, obscene, pornographic, indecent, lewd, libelous, invasive of another’s privacy, or racially, ethnically or otherwise offensive, hateful, or abusive; (iii) infringes any third party’s patent, trademark, trade secret, copyright, other intellectual property rights, or other rights (collectively, “IP Rights”); (iv) advocates or solicits violence, criminal conduct, or the violation of any local, state, national or international law or the rights of any third party; (v) is deceptive in any way or contains an impersonation of any person or entity or misrepresents an affiliation with a person or entity; (vi) provides material support or resources (or conceals or disguises the nature, location, source or ownership of same) to any organization designated by the U.S. government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act; and/or (vii) reproduces, sells, resells, or exploits for any commercial purpose any portion of, use of, or access to, the Services;

5.6.4        Podcasters and  PodSearch™ Display Advertisers will provide PodSearch all information, materials, consents, and authorizations necessary for PodSearch to provide the PodSearch™ Listing and Display Advertising Services, and will do so in a timely manner.

5.7         Disclaimers.

5.7.1        UNLESS OTHERWISE AGREED TO IN WRITING, PODSEARCH™ MAKES NO WARRANTY REGARDING APPLICABILITY OF ANY REQUIREMENTS, STANDARDS AND/OR PRACTICES OF A LEGAL, REGULATORY, SELF-REGULATORY, AND/OR ETHICAL NATURE (COLLECTIVELY “REGULATIONS”) TO ANY LISTING, BANNER AD OR DISPLAY AD, OR WITH RESPECT TO ANY COMPLIANCE THEREWITH. EACH PODCASTER AND PODSEARCH™ DISPLAY ADVERTISER IS SOLELY RESPONSIBLE FOR ENSURING ITS OWN COMPLIANCE WITH REGULATIONS APPLICABLE TO ITS LISTINGS AND LISTING AND ADVERTISING MATERIALS.

5.7.2        PodSearch makes NO warranty or commitment regarding the characteristics of the PodSearch™ Listing Services, or any Listing, including with respect to traffic, usage statistics, or conversion or interaction rates. Podcaster acknowledges that it is not relying on: (a) any representation or warranty concerning revenue, profit, return on investment, or results to be generated from its Listings; (b) any representation or warranty regarding either the number, makeup, or distribution of people who will view Listings; (c) any representation, warranty, or covenant concerning the quantity, quality and/or validity of traffic, impressions, or interactions with or leads generated by Listings; (d) any custom or prior course of dealing; or (e) the nature of others’ Listings.

5.7.3        PODCASTERS AND PODSEARCH™ DISPLAY ADVERTISERS ASSUME ALL RISKS CONCERNING THE FUNCTIONALITY, PERFORMANCE, AND RESULTS OF THE PODSEARCH™ LISTING AND DISPLAY ADVERTISING SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, PODSEARCH™ MAKES NO REPRESENTATIONS, WARRANTIES, OR GUARANTEES TO PODCASTER OR PODSEARCH™ DISPLAY ADVERTISER OF ANY KIND, EITHER EXPRESS OR IMPLIED (INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, OR OTHER WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE), REGARDING THE FUNCTIONALITY, PERFORMANCE, OR RESULTS OF THE PODSEARCH™ LISTING AND DISPLAY ADVERTISING SERVICES OR OTHERWISE UNDER OR RELATED TO THIS AGREEMENT.

5.7.4        PodSearch will have no obligation to investigate or confirm, and does not in any way endorse, the accuracy, legality, legitimacy, validity, suitability, or reliability of any Listing and Advertising Materials. PodSearch makes no representations or warranties whatsoever concerning any products or services advertised, sold, or provided by Podcasters or PodSearch™ Display Advertisers (including, without limitation, the quality, safety, or legality of such products or services or the sale thereof), or any offers, deals, coupons, or other promotional materials or representations contained or referenced in any content generated by Podcaster or PodSearch™ Display Advertiser. Any commercial, sales, use, membership, subscription, affiliation, participation, or promotional relationship Podcaster or PodSearch™ Display Advertiser may create with any third party, including obligations undertaken by Podcaster or PodSearch™ Display Advertiser with respect to payment and delivery of related goods or services, and any other terms, conditions, and warranties or representations associated with such dealings, are solely between Podcaster or PodSearch™ Display Advertiser and such third party. Podcasters and PodSearch™ Display Advertisers will be solely liable to any third-party claimant with respect to any such content generated by Podcaster or PodSearch™ Display Advertiser.  

5.8         Infringement; Indemnity; Limitation of Liability.

5.8.1        If a third party claims, or if PodSearch believes that a third party may claim, that any Listing, banner ad, display ad, or Listing and Advertising Materials, or the placement or publishing thereof, infringes any third party’s IP Rights, PodSearch may terminate the Podcaster Account, disable or delete a Listing, or banner ad, or display ad, in whole or in part, and/or suspend the Services, in PodSearch’s sole discretion, without liability, until Podcaster or PodSearch™ Display Advertiser has resolved the actual or potential third-party claim to PodSearch’s satisfaction. Podcasters and PodSearch™ Display Advertisers shall indemnify and hold PodSearch harmless against all claims, actions, losses, expenses, damages, costs, and liabilities, including professional advisors’ fees and other expenses, incurred in the defense of any claims arising from this agreement or from the  use of the Services by Podcaster or PodSearch™ Display Advertiser, including in connection with: (a) breaches of any warranty or covenant made herein; (b) the Listing and Advertising Materials, Listings, and requests for Listings and/or other services by Podcaster or PodSearch™ Display Advertiser; and (c) the failure by Podcaster or PodSearch™ Display Advertiser to honor any promise, offer, or other statement set forth in any Listing, banner ad, display ad, Listing and Advertising Materials or content generated by Podcaster or PodSearch™ Display Advertiser.

5.8.2        Any claim arising out of an error or omission in PodSearch’s performance of the PodSearch™ Listing or Display Advertising Services must be made in writing by U.S. Certified Mail (return receipt requested) to PodSearch (attn.: legal department) within six months of the first occurrence of such error or such claim shall be deemed waived. In no event will PodSearch’s aggregate liability under this agreement exceed the fees paid by Podcaster or PodSearch™ Display Advertiser to PodSearch. UNDER NO CIRCUMSTANCES WILL PODSEARCH™ BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, DAMAGES RELATING TO LOSS OF PROFIT, LOSS OF INCOME OR REVENUE, OR LOSS OF GOODWILL, FOR ANY REASON WHATSOEVER, INCLUDING THE RESULT OF ERRORS OR OMISSIONS, THE REJECTION OR REMOVAL, DELAY IN DISPLAYING, OR FAILURE TO DISPLAY ANY LISTING OR BANNER AD, OR FAILURE TO PERFORM SERVICES. PODSEARCH™’S ACCEPTANCE OF THIS AGREEMENT AND THE RATES CHARGED FOR THE SERVICES ARE BASED UPON THE LIMITATION OF PODSEARCH™’S LIABILITY AS SET FORTH HEREIN. 

5.8.3        PodSearch™ will not have any liability to Podcaster or PodSearch™ Display Advertiser if PodSearch’s performance of its obligations is delayed by the occurrence of: (a) fires, floods, earthquakes, elements of nature, acts of God, acts of war, terrorism, riots, civil disorders, rebellions or revolutions, sabotage, embargo, government action or order, blackouts, epidemic or quarantine, strikes/labor difficulties, or any other similar cause; or (b) any event or circumstance within the control of, or caused by information provided by, Podcaster, PodSearch™ Display Advertiser or a third party.

5.9         Miscellaneous; Exclusive Venue.

5.9.1        This Agreement and all claims and disputes arising under or relating to this Agreement will be governed by and construed in accordance with the laws of the State of California, without giving effect to its conflicts of law principles. Any action or proceeding arising under or relating to this Agreement shall be filed only in the United States District Court for the Central District of California or the Superior Court of Los Angeles County, California.  Podcasters and PodSearch™ Display Advertisers hereby consent and submit to the exclusive jurisdiction and venue of those courts and waive any objection based on the convenience of these exclusive venues. All claims and disputes arising under or relating to this agreement shall be adjudicated on an individual basis, and Podcasters and PodSearch™ Display Advertisers will not consolidate or seek class treatment for any claim unless previously agreed to in writing by PodSearch.  PodSearch’s failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.  This Agreement constitutes the entire agreement between the parties regarding the subject matter hereof and supersedes all other communications, including all prior agreements, between the parties with respect to such subject matter.  If any provision of this Agreement is deemed unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.  PodSearch may assign its rights and duties under this Agreement to any party at any time without notice to Podcaster or PodSearch™ Display Advertiser; provided, that upon any such assignment, Podcasters and PodSearch™ Display Advertisers hereby acknowledge and agree that PodSearch shall be released and discharged from further liabilities, duties and obligations hereunder; provided, further that such release and discharge shall not affect any rights of PodSearch or liabilities, duties, and obligations owed by Podcaster or PodSearch™ Display Advertiser to PodSearch with respect to payments or other obligations due and payable or due to be performed on or prior to the date of such assignment. Podcaster’s and PodSearch™ Display Advertisers’ rights and duties under this Agreement are not assignable without the written consent of PodSearch.

6.         Intellectual Property Policy

6.1         Copyright Infringement Complaints

6.1.1        PodSearch respects the copyright of others.  PodSearch has adopted a policy towards alleged copyright infringement in accordance with the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. § 512(c)(3).  PodSearch reserves the right to remove, suspend, terminate access, or take other appropriate actions against users or third parties that it believes, in good faith, to be infringing copyrighted material.

6.1.2        DMCA Take-Down Notice.  If you believe that any material on or accessible through the PodSearch™ Site or Service infringes a copyright, pursuant to the DMCA, please send a copyright complaint to our Designated Agent containing the following information:

6.1.2.1       Identification of the copyrighted work(s) or material(s) claimed to be infringed;

6.1.2.2       Identification of the material that is claimed to be infringing, or to be the subject of allegedly infringing activity, and that is to be removed, including information reasonably sufficient to permit PodSearch to locate and identify the material;

6.1.2.3       Contact information sufficient for PodSearch to identify you, including your name, and address, telephone number and/or email address. If you are not the owner of the allegedly infringed copyrighted material, please describe your relationship to the copyright owner;

6.1.2.4       Include the following statement: “I have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;”

6.1.2.5       Include the following statement: “The information in this notice is accurate, and under penalty of perjury, I am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;” and

6.1.2.6       A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright owner or other person claiming infringement.

6.1.3        PodSearch’s Actions Upon Receipt of a DMCA Takedown Notice.

6.1.3.1       It is PodSearch’s policy to: (1) remove or disable access to the allegedly infringing work or material; (2) notify the Registered User that we have removed or disabled access to the accused work or material; and (3) in the case of repeat infringers, remove the allegedly infringing material and terminate such Registered User’s access to the service

6.1.3.2       Please note that, if PodSearch takes action on your request, our notification to the Registered User includes a complete copy of your Copyright Complaint (which may include your name, address, phone and email address). If you do not wish that your contact information be provided, you should consider using an agent to report the Complaint on your behalf.

6.1.4        Counter-Notification Policy.  If you believe that material which was removed is either not infringing or that you have been granted permission to use the material from the copyright owner, the copyright owner’s agent, or pursuant to the law, you may submit a counter-notice to the Designated Agent containing the following information:

6.1.4.1       Identification of the material that was mistakenly removed or disabled from access, in writing;

6.1.4.2       A description that reasonably identifies the material that has been removed, or to which access has been disabled, and the location of the material prior to its removal;

6.1.4.3       Your name, address, telephone number and email address;

6.1.4.4       Include the statement: “I swear under penalty of perjury that I have a good faith belief that the material was removed or disabled from access as a result of mistake or misidentification of the material to be removed or disabled;”

6.1.4.5       Include the statement: “I consent to the jurisdiction of the Federal District Court for the judicial district in which my address is located or any judicial district in which the service provider may be found, and I will accept service of process from the person who provided the notification under Section 512(c)(1)(C) or an agent of such person;” and

6.1.4.6       A physical or electronic signature of the content provider.

6.1.5        PodSearch’s Actions Upon Receipt of a DMCA Counter Notification. If PodSearch receives a valid counter-notification, we may send a copy of such notice to the original complaining party informing them that we may restore the removed material or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, the removed material may be replaced, or access to it restored, in 10 to 14 business days, or more, after receipt of the counter-notice.

6.1.6        Repeat Infringers. When appropriate, PodSearch will terminate a repeat infringer’s access to its account. If you believe that a Registered User is a repeat infringer, please follow the instructions above to contact PodSearch and provide information sufficient for us to verify that the Registered User is a repeat infringer.

6.1.7        Designated Agent. Please contact PodSearch’s Designated Agent to Receive Notification of Claimed Infringement using the following address contact information:

BAKER WILLIAMS MATTHIESEN LLP

5005 Woodway Drive Suite 201

Houston, Texas 77056

713.888.2507

rocky@bwmtx.com

6.2         Trademark Infringement Complaints

6.2.1        To report a claim of trademark infringement, please provide the following items to rocky@bwmtx.com

6.2.1.1       Contact information, including: your full name, telephone number, address and email. If you are not the owner of the trademark that has allegedly been infringed, please describe your relationship to the trademark owner;

6.2.1.2       The specific word, symbol, etc. to which you claim trademark rights;

6.2.1.3       The basis of your trademark rights, including, if applicable, the application or registration number;

6.2.1.4       The country in which you claim trademark rights;

6.2.1.5       The products and/or services covered by your claimed trademark rights;

6.2.1.6       Identification of the material that is claimed to be infringing, including information regarding the location of the allegedly infringing materials that you seek to have removed, with sufficient detail so that PodSearch is capable of finding such material. The easiest way to do this is to provide a URL linking directly to the allegedly infringing content;

6.2.1.7       A statement detailing why the use of the trademark(s) at issue in the allegedly infringing materials creates consumer confusion as to source, origin, affiliation or endorsement;

6.2.1.8       A statement representing that the trademark(s) at issue was registered and/or in use prior to the alleged infringement;

6.2.1.9       The following statement: “I represent that the information in this notification is true and correct and that I am authorized to act on behalf of the trademark owner;” and

6.2.1.10   Your electronic or physical signature.

6.2.2        PodSearch’s Actions Upon Receipt of a Trademark Infringement Complaint.  If PodSearch receives the above-requested information, we will process your claim and consider whether to remove the allegedly infringing material. If we remove the content, we will issue a warning to the party that posted the content alerting them the material was removed due to a claim of trademark infringement. We may provide them with your contact information, including your name and email address. If they believe the content was improperly removed, they will be encouraged to contact you directly to resolve the issue. If you do not wish that your contact information be provided, you should consider using an agent to report the Complaint on your behalf. In some cases, the removed material may be restored and you will be notified. If we determine that a user is a repeat infringer, we will, in our discretion, remove access to that user’s account.

7.         Electronic Commerce Terms

You, whether personally or on behalf of the entity for whom you are acting as an authorized signatory, are purchasing certain PodSearch™ products or services (each, a “Product” or “Service”). Such purchase is subject to the applicable terms provided and identified below (“Terms”).

BY INDICATING YOUR ACCEPTANCE OR USING ANY OF THE SERVICES, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THE TERMS, WHICH CONTAIN BINDING DISPUTE RESOLUTION PROVISIONS AND LIABILITY LIMITATIONS.

7.1         Electronic Acceptance Is Binding.

Your indication of your assent to the terms, whether express (for example, by clicking on an “I AGREE” icon) or implicit (for example, by using any Product or Service) constitutes your agreement to the Terms. You agree that such acceptance will have the same force and effect as if you had manually signed a paper version of these Terms. All references in the Terms to “signature” or the like will be deemed references to your assent to these terms. You hereby irrevocably waive any “opt-out” rights that you may have under applicable law to receive physical copies of these Terms.

7.2         Electronic Transactions.

7.2.1        You agree that all business pursuant to these terms may, in the sole discretion of PodSearch, be conducted electronically. We will charge your credit card for amounts you incur in purchasing the Services.

7.2.2        As permitted by our Privacy Policy, our secure merchant account provider will save your credit card information and use it for all future charges, which will automatically be charged to your saved card unless you notify PodSearch™ customer service. Your right to cancel any recurring charges are provided in the applicable Product and/or Service Terms. We are not responsible for any fees or charges your credit card issuer may apply. If your credit card issuer reverses a charge to your credit card, we may bill your account directly and seek payment by another method such as a mailed statement. We may also cease providing Services to you.

7.2.3        Applicable Terms.  Your use of the PodSearch™ Site and PodSearch™ Mobile App is subject to the PodSearch™ General Terms and Conditionsand PodSearch™ Privacy Policy. Please refer to the PodSearch™ General Terms and Conditionsfor important details that affect your use of the Services, such as the management of your PodSearch™ account. PodSearch’s provision of the Services, and your receipt and use of the Services, is subject to the terms applicable to each Service. Please refer to these service-specific terms before purchasing.

7.2.4        Entire Agreement; Precedence.  These Electronic Transactions Terms supersede all prior and contemporaneous agreements and understandings between you and PodSearch relating to the Services.  In the event of any conflict or inconsistency among these Electronic Transaction terms, the Service terms, and the PodSearch™ General Terms and Conditions, precedence will be given in that order.

8.         Mobile App End User Terms

BY CLICKING THE “ACCEPT” BUTTON OR DOWNLOADING OR USING THE PODSEARCH™ MOBILE APPLICATION (“PODSEARCH™ MOBILE APP”), YOU ARE ENTERING INTO AND AGREEING TO BE BOUND BY THESE MOBILE APP END USER TERMS, IN ADDITION TO THE PODSEARCH™ GENERAL TERMS AND CONDITIONSPRIVACY POLICY, AND ANY OTHER TERMS THAT MAY APPLY. CAPITALIZED WORDS OR PHRASES NOT DEFINED IN THIS MOBILE APP END USER TERMS HAVE THE MEANING GIVEN TO THEM IN THE PODSEARCH™ GENERAL TERMS AND CONDITIONS.

8.1         License Grant

PodSearch grants you a revocable, non-exclusive, non-transferrable, limited right to install and use the PodSearch™ Mobile App on a mobile telephone or other device controlled by you (each a “Mobile Device”), and to access and use the Services on such Mobile Device strictly in accordance with the PodSearch™ General Terms and Conditions for the purposes PodSearch makes such Services available.

8.2         Reservation of Rights

8.2.1        A license to use the PodSearch™ Mobile App does not transfer to you any right, title or interest in or to any of PodSearch’s intellectual property rights or those of our suppliers or licensors.  The PodSearch™ Mobile App has been licensed, not sold, to you.  Other than the limited license granted, you have no other right, title or interest in the Service, or any software or documentation related to the PodSearch™ Mobile App.  Any rights not expressly granted to you are fully reserved by us and our suppliers or licensors, as applicable, and no such rights are conferred by estoppel, operation of law, implication or otherwise. PodSearch does not grant to you, any express or implied rights (whether by implication, estoppel or other legal theory) in or to any intellectual property (or the unauthorized use of the intellectual property) and all such rights are retained by PodSearch and its licensors.  You shall not: (i) decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the PodSearch™ Mobile App; (ii) make any modification, adaptation, improvement, enhancement, translation or derivative work from the PodSearch™ Mobile App; (iii) remove, alter or obscure any proprietary notice (including any notice of copyright or trademark) of PodSearch or its affiliates, partners, suppliers or the licensors of the Services or otherwise obscure or modify the manner in which the Services are displayed by means of the PodSearch™ Mobile App; (iv) install, use or permit the PodSearch™ Mobile App to exist on more than one Mobile Device at a time or on any other mobile device or computer, other than by means of your separate downloads of the PodSearch™ Mobile App, each of which is subject to a separate license (this restriction however does not limit your right to reinstall the PodSearch™ Mobile App on the specific Mobile Device for which it was downloaded); (v) distribute or link the Services to other services; (vi) make the Services available over a network or other environment permitting access or use by multiple Mobile Devices or users at the same time.

8.2.2        You may not use or otherwise export or re-export the Services or the PodSearch™ Mobile App except as authorized by United States law and the laws of the jurisdiction(s) in which any Service or the PodSearch™ Mobile App was obtained. You represent and warrant that you are not (i) located in any country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist sponsoring" country, or (ii) listed on any U.S. Government list of prohibited or restricted parties including the Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person's List or Entity List. You also agree that you will not use the Services or the PodSearch™ Mobile App for any purposes prohibited by United States law.

8.3         Using the PodSearch™ Mobile App

8.3.1        PodSearch has no obligation to maintain or support the PodSearch™ Mobile App. PodSearch may, without further notice to you, periodically access your Mobile Device remotely to update, modify, add to or upgrade the PodSearch™ Mobile App. In rare instances, such updates, modifications, additions or upgrades may cause data loss or other issues. You are solely responsible for regularly backing up your data to prevent this from occurring.

8.3.2        You acknowledge and understand that certain Services or aspects of the PodSearch™ Mobile App require and utilize phone service, data access or text messaging capability. Except as otherwise noted as part of the Services, PodSearch does not charge for the use of Services, but carrier rates for phone, data and text messaging may apply and you are responsible for any such charges.

8.4         DISCLAIMERS

8.4.1        PodSearch makes no representation that any third-party mobile device platform or service provider has endorsed the Services, and you should not rely on the availability of the PodSearch™ Mobile App by means of any third-party mobile device platform, or other means of downloading, as an endorsement of the PodSearch™ Mobile App, the Services or PodSearch generally. In no event shall any third-party mobile device platform or service provider have any obligation to you whatsoever to furnish any maintenance and support services with respect to the PodSearch™ Mobile App.

8.4.2        NEITHER PODSEARCH, NOR ANY OF ITS ASSOCIATED MOBILE DEVICE PLATFORM AND SERVICE PROVIDERS, WARRANTS THAT THE PODSEARCH™ MOBILE APP WILL BE COMPATIBLE OR INTEROPERABLE WITH YOUR MOBILE DEVICE OR ANY OTHER PIECE OF HARDWARE, SOFTWARE, EQUIPMENT OR DEVICE INSTALLED ON OR USED IN CONNECTION WITH YOUR MOBILE DEVICE. FURTHERMORE, YOU ACKNOWLEDGE THAT COMPATIBILITY AND INTEROPERABILITY PROBLEMS CAN CAUSE THE PERFORMANCE OF YOUR MOBILE DEVICE TO DIMINISH OR FAIL COMPLETELY, AND MAY RESULT IN PERMANENT DAMAGE TO YOUR MOBILE DEVICE, LOSS OF THE DATA LOCATED ON YOUR MOBILE DEVICE, AND CORRUPTION OF THE SOFTWARE AND FILES LOCATED ON YOUR MOBILE DEVICE. YOU ACKNOWLEDGE AND AGREE THAT PODSEARCH™ AND ITS AFFILIATES, PARTNERS, SUPPLIERS, LICENSORS, AND ASSOCIATED MOBILE DEVICE PLATFORM AND SERVICE PROVIDERS SHALL HAVE NO LIABILITY TO YOU FOR ANY LOSSES SUFFERED RESULTING FROM OR ARISING IN CONNECTION WITH COMPATIBILITY OR INTEROPERABILITY PROBLEMS.

8.4.3        THE USER, WHETHER A LISTENER, PODCASTER, PODSEARCH™ DISPLAY ADVERTISER OR COMPANY, OF THE SERVICES ASSUMES ALL RESPONSIBILITY AND RISK FOR THE USE OF THE PODSEARCH™ MOBILE APP AND SERVICES GENERALLY.

9.         Privacy Policy

This policy describes how PodSearch collects, uses, shares, and secures information on the PodSearch™ Site and the PodSearch™ Mobile App, as well as the services we use to communicate with consumers and to facilitate communications between Companies and Podcasters.

Although you should read through the entire policy for complete information, the following provides a summary of some of the most important aspects of our privacy practices:

  • We will track the activity of Registered Users on the PodSearch™ Directory and use the information for research purposes. For example, we may report to Podcasters data regarding the amount of traffic to their podcast profile pages and clicks on links displayed thereon, and aggregated information regarding the age, gender, and geographical location of Registered Users driving that traffic.

  • We do not share personally-identifying information of Registered Users with any third party.

  • We are committed to working with you to reach the right balance of what information we collect, use, and share, by providing you with ways to control information that we collect, through our opt-out mechanisms.

  • We take reasonable measures to secure your sensitive personally-identifiable information, but we cannot promise, and you should not expect, that your sensitive personally-identifiable information will remain secure in all circumstances.

9.1         Information Collected by PodSearch

When we use the term “information” we are referring to both personally-identifiable information and non-personally-identifiable information that we collect about you.

9.1.1        “Personally-identifiable information” refers to information that personally identifies you, or can reasonably be linked to you by us. Personally-identifiable information can either be “sensitive” or “non-sensitive.” “Sensitive personally-identifiable information” refers to information that is generally considered confidential such as your credit card number, billing information, and precise location.

9.1.2        “Non-sensitive personally-identifiable information” refers to information that is generally not considered confidential, such as your name, age, email address, general geographic information (e.g., zip code), account preferences, and business information.

9.1.3        “Non-personally-identifiable information” refers to information that does not specifically identify you, or has been processed so as to effectively prevent your identification, and may include data associated with a particular computer or device you are using that does not personally identify you.

9.2         How PodSearch Uses the Information

Our primary purpose in collecting information about you is to provide you with services, information, and advertisements that match your interests and preferences. For example, we may use this information to respond to your inquiries, administer your account, send marketing, and assess your needs and interests in order to better tailor advertising, improve our website and marketing, conduct research, display information based upon your interests, allow you to search information on our site and, in the case of Podcasters, list you and your podcasts in our PodSearch™ Directory. We do this on behalf of ourselves and the Podcasters that place information, banner ads in the PodSearch™ Directory, and display ads in PodSearch marketing materials. We also use traffic data received through our technologies to provide Podcasters information about the general demographic characteristics of Listeners who may be interested in the Podcasters’ podcasts.

9.3         How PodSearch Collects the Information

We collect information from you by asking that you provide it to us on-line, through a mobile application or device or via other means by which we communicate with you. We also collect information when you choose to communicate with us and when Companies choose to utilize our services to communicate with Podcasters. We also collect information about your interactions with third-party websites via links placed on our site or mobile app. Information we collect may include:

9.3.1        Identification data (for example, your name, username, password, and email address);

9.3.2        Profile information (for example, your age, gender, zip code, and any information that you choose to make available, such as your areas of interest, when you set up your Registered User account);

9.3.3        Services that you purchase through the PodSearch™ Site;

9.3.4        The content of any communications you choose to have with us related to the services we make available (for example, e-mails, instant messages, recorded telephone calls, etc.). We may also collect information from you automatically. For instance, we, like many websites and applications, may automatically collect information including the computer or wireless device you use, unique device identifier, location data, the type of browser and operating system that you use, the internet provider or wireless carrier you use, the webpages or applications you view, the time and duration of your visits, the search queries that you enter, and how you interact with advertising. Among other things, we may use the following technologies to automatically collect information:

9.3.4.1       “Cookies” are small data files placed on your computer by the websites you visit and the emails you read and can be used to help recognize you when you return to a website, or when you visit other sites. We, or third party service providers, may use cookies to, among other things, measure activity, personalize your experience, remember your viewing preferences, or track your status or progress when accessing our site. For some of these purposes our cookies may be tied to personally-identifiable information. If you choose, you can set your browser to reject cookies or you can manually delete some or all of the cookies, on your computer by following your browser’s help file directions. If your browser is set to reject cookies or you manually delete cookies, you may have trouble accessing and using some of the pages and features that are currently on our website, or that we may put on our website in the future.

9.3.4.2       PodSearch and our marketing partners, affiliates, analytics or service providers may use technologies such as cookies, beacons, scripts and tags. These technologies are used in analyzing trends, administering the website, tracking users’ movements around the site, and gathering demographic information about our user base as a whole. We may receive reports based on the use of these technologies by these companies on an individual and aggregated basis. Various browsers may offer their own management tools for removing these types of tracking technologies.

9.3.4.3       “Unique Identifiers” are unique strings of characters that are used to identify you, your computer, or your mobile device. Such identifiers may be preset on your computer or mobile device. We may use unique identifiers to recognize you when you visit our sites or use our mobile applications.

9.3.4.4       We may use mobile analytics software to allow us to better understand the functionality of our mobile software on your phone. This software may record information such as how often you use the application, the events that occur within the application, aggregated usage, performance data, and where the application was downloaded from. We do not link the information we store within the analytics software to any personally identifiable information you submit within the mobile application.

9.3.4.5       “Local Shared Objects,” “LSO’s,” or “Flash Cookies” are data files similar to cookies, except that they can store more complex data. Third parties with whom we partner to provide certain features on our website may use Flash cookies to remember settings, preferences, and usage. Cookie management tools provided by your browser will not remove them. To learn how to manage privacy and storage settings for LSO’s or Flash Cookies click here:

(http://www.macromedia.com/support/documentation/en/flashplayer/help/settings_manager.html#117118).

9.3.4.6       We may use Local Storage, such as HTML5, to store content information and preferences. Third parties with whom we may partner to provide certain features on our website or to display advertising based upon your web browsing activity may also use HTML5 to collect and store information. Various browsers may offer their own management tools for removing HTML5.

9.3.4.7       “Telephone Caller ID” refers to information automatically transmitted about you when you call someone. If you call a telephone number that we have provided to you, your caller ID may be recorded. Most telephone providers will, upon request, block your caller ID. Such services may not always be effective if you choose to call a pay-per-call (900) or toll-free number.

9.3.4.8       “Web beacons” or “clear pixels” are small graphic images on a Web page or in an e-mail that can be used for such things as recording the pages and advertisements clicked on by users, or tracking the performance of e-mail marketing campaigns. A “web server log” is a record of activity created by the computer that delivers the webpages you request to your browser. For example, a web server log may record the search term you entered or the link you clicked to bring you the webpage. The Web server log also may record information about your browser, such as your IP address and the cookies set on your browser by the server.

9.3.4.9       A “widget” is a program or application that can be embedded in a web page or mobile application. Widgets can provide real-time information, such as stock quotes or weather reports, or take information, such as restaurant reservations or online food orders. Widgets are often provided and hosted by a third party, and may allow that third party to collect data about users viewing that page or interacting with that widget, possibly subject to privacy policies other than PodSearch’s. We may also use Social Media Features, such as the Facebook Like button. In addition to information you fill in, these features may collect your IP address, which page you are visiting on our site, and may set a cookie to enable the feature to function properly.

9.3.4.10   We may allow you to log in to our site using “sign-in services” such as Facebook Connect or an Open ID provider. These services will authenticate your identity and provide you the option to share certain personally-identifiable information with us, such as your name and email address to prepopulate our sign-up form, or to post information to your account.

9.3.4.11   “Geo-location technologies” refers to technologies that permit us to determine your location. We may ask you to manually provide precise location information on our website, or to enable your mobile device to send us precise location information in order to collect data that assist Podcasters.

9.3.4.12   We may also automatically use information from your web server or computer to determine general location information, such as the city in which you live.

9.3.5        In addition to information that we collect from you, we may collect information about you from third parties for purposes such as ad targeting, optimization and reporting.

9.4         With Whom PodSearch Shares the Information

We may share information about you with third parties in certain circumstances including in the following situations:

9.4.1        Companies using PodSearch DIY™.  If you decide to communicate with a Podcaster by clicking on the “contact” button in PodSearch DIY™, we may share non-personally-identifiable information with the Podcaster, including clicks.

9.4.2        Business Transition. In the event that we, or part, or all, of our assets are acquired, we may share all types of information with the acquiring company. You will be notified via email or a notice on our website of any change in ownership or uses of your personally-identifiable information, as well as any choices you may have regarding your personally-identifiable information.

9.4.3        In-line Applications & Tools. We may offer applications, tools, or widgets on our website or in our applications that indicate that they are “powered by” a third party. If you use those applications and tools we may share non-sensitive personally-identifiable information and any additional information you provide as part of that use with that third party. The third party’s use of that information is subject to their privacy policy.

9.4.4        Law Enforcement. We may report to law enforcement agencies any activities that we reasonably believe to be unlawful, or that we believe may aid a law enforcement investigation. In addition, we reserve the right to release all types of information to law enforcement agencies if we determine, in our sole judgment, that either you have violated our policies, or the release of information about you may protect the rights, property or safety of us or another person.

9.4.5        Legal Processes. We may share all types of information with others as required by, or permitted by, law. This may include sharing all types of information with governmental entities, or third parties in response to subpoenas, court orders, other legal process, or as we believe is necessary to exercise our legal rights, to defend against legal claims that have been brought against us, or to defend against possible legal claims that we determine in our sole discretion might be brought against us.

9.4.6        Service Providers. We may share some information with people and companies that provide us with applicable services. These services may include, among other things, helping us provide services that you request, create or maintain our databases, research or analyze the people who use our websites, a mapping service provider to provide a map of the location you are in, and/or process payment card information. Unless you consent, we do not permit our service providers to market their own products or services to you directly. We also require our service providers to agree to take reasonable steps to keep the personally-identifiable information that we provide to them secure. In some instances, we may maintain the look and feel of our site while you are on our service provider’s site. You should look for the “privacy policy” link of any page on which you are submitting information to determine if this privacy policy, or another company’s privacy policy, governs.

9.4.7        Other Third Parties (without your consent).  We may share non-personally-identifiable information with other third parties that are not described above. When we do so we endeavor to either aggregate or de-identify the information so that a third party would not be likely to link data to you, your computer, or your device.  Aggregation means that we combine the non-personally-identifiable information of numerous people together so that the data does not relate to any one person.  De-identify means that we remove or change (for example, hash) certain pieces of information that might be used to link data to a particular person.

9.4.8        Other Third Parties (with your consent).  We may share any information, including sensitive personally-identifiable information, with other third parties that are not described above if you give us consent to do so.

9.5         How PodSearch Secures Your Information

We take our commitment to securing personally-identifiable information in our possession seriously.  When you provide your credit card number we protect your information during transmission and storage through the use of encryption. For other types of information, we use reasonable measures to help prevent the information from becoming disclosed to individuals who are not described in this policy.  It is important for you to protect against unauthorized access to your password and to your computer.  No security measures are perfect and we cannot promise that the information about you will remain secure in all circumstances.

9.6         Your Privacy Choices

We provide you with the following information management choices:

9.6.1        Revising Your Information.  If your personally-identifiable information changes, or if you no longer desire our services, you may correct, update, or delete information about you, or ask that it be removed from the PodSearch™ Site by logging in and viewing your user profile via the “Profile” and “Account Settings” links on PodSearch.com or by contacting us at the email address or mailing address indicated below. We will attempt to respond to your requests within 30 days. In some cases, we may not be able to remove your personally-identifiable information, in which case we will let you know if we are unable to do so and why.

9.6.2        Do Not Track signal.  We treat the data of everyone who comes to our site in accordance with this privacy policy, whatever their Do Not Track setting.

You can exercise your choices as described in this section of our privacy policy. We will retain your personally-identifiable information for the period necessary to fulfill the purposes outlined in this Privacy Policy unless a longer retention period is permitted by law.

9.7         Additional Information

9.7.1        Other Websites.  This privacy policy does not apply to websites or applications offered by other companies or individuals, including sites that may be displayed on a Podcaster’s profile page. We encourage you to read the privacy policies of any third-party website before transmitting personally-identifiable information.

9.7.2        Other Contractual Relationships.  If you enter into a separate contractual relationship with us which requires, or contemplates, collecting, using, sharing, or securing information about you in a manner that is different than that which is described in this policy, the terms of that contract will apply.

9.7.3        Your California Privacy Rights.  Under California Civil Code sections 1798.83-1798.84, California residents who have an established business relationship with us are entitled to ask us for a notice describing what categories of personal customer information we share with third parties or corporate affiliates for those third parties or corporate affiliates’ direct marketing purposes. That notice will identify the categories of information shared and will include a list of the third parties and affiliates with which it was shared, along with their names and addresses. If you are a California resident and would like a copy of this notice, please submit a written request to the following address:

BAKER WILLIAMS MATTHIESEN LLP

5005 Woodway Drive Suite 201, Houston, Texas 77056

713.888.2507

rocky@bwmtx.com

Please allow 30 days for a response.

9.7.4        Children.  Our site is intended for a general, adult audience, and we never knowingly collect personally identifiable information from anyone under the age of 13.

9.7.5        Changes to The Privacy Policy.  We may update this privacy policy to reflect changes to our information practices. If we make any material changes to our policy, those changes will apply to information collected after the effective date listed, and we will notify you by placing a notice on our websites prior to the change becoming effective. We encourage you to periodically review this page for the latest information on our privacy practices.

9.7.6        How We Communicate With You.  If you have any questions or concerns regarding our privacy policy please contact us at: Email address: customerservice@podsearch.com, Mailing address: 21550 Oxnard Street Suite 460, Woodland Hills, CA 91367. If we need, or are required, to contact you concerning any event that involves information about you, we may do so by email, telephone, or mail.

9.7.7        Effective Date: May 2, 2017

9.8         Email Communications Policy

PodSearch may communicate with you via email.  If you do not want to receive emails from us about products or services that we offer, you can “opt-out” from receiving such emails by clicking on the “unsubscribe” link provided at the bottom of any marketing email that you receive. Please note that if you choose to opt-out we may still send you non-marketing emails.  For example, we may send you an email about a specific product or service that you request, we may respond to a message from you, or we may send you an email about the terms and conditions of our websites. If you decide at a later time that you would like to receive commercial emails from us, you can re-add yourself to our communication list.