Podtrac Player End User Agreement
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY before embedding, posting or using the PODTRAC PLAYER (“PLAYER”). This Podtrac Player End User Agreement (“AGREEMENT”) governs your use of any Podtrac Player made available to you via PODTRAC, a third party website or otherwise.
PODTRAC is willing to license THE PODTRAC PLAYER to you only upon the condition that you accept all the terms contained in this Agreement. By embedding, posting or using the player on your website or social network site web page (“site”), you indicate that you have read and understand this Agreement and accept all of its terms without limitation. If you do not accept all the terms of this Agreement you are not authorized to embed, post or use the PLAYER. If you agree to these terms on behalf of a business, you represent and warrant that you have authority to bind that business to this Agreement, and your agreement to these terms will be treated as the agreement of the business. In that event, “you” and “your” refer herein to that business.
(a) Grant. Subject to the terms of this Agreement, Podtrac grants you a non-exclusive and non-transferable license to embed and display the Podtrac Player on your Site. Podtrac reserves all rights in the Player not expressly granted to you in this Agreement.
(b) Restrictions. Except as expressly specified in this Agreement, you may not: (i) use, copy, modify or distribute the Player for any purpose; (ii) transfer, sublicense, lease, lend, rent or otherwise distribute the Player to any third party; (iii) make the functionality of the Player available to multiple users through any means; or (iv) use the Player in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement.
2. Proprietary Rights. You agree that Podtrac, its affiliates and licensors own all right, title and interest in and to the Player, including without limitation all intellectual property rights therein. You will not remove, delete or in any manner alter the copyright, trademark, and other proprietary rights notices or markings appearing on or incorporated in the Player.
3. Player Usage Requirements. You agree to comply with all applicable laws, rules
and regulations when using the Player. You will not, directly or indirectly:
(a) Alter, modify, delete or otherwise interfere with any content, advertising, services and/or features contained on or accessible though the Player, including without limitation, the Player’s display feature advertising and/or content delivery and display functionality, in each case, except as expressly permitted by the Player.
(b) Transmit, email or post by means of Player any material that contains software viruses.
(c) Use the Player to disseminate content that infringes a third party’s intellectual property rights.
4. Consent to Use of Data. You agree that Podtrac may collect and use technical data and related information, including but not limited to technical information about user’s devices, systems and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other provided services (if any) related to the Player. Podtrac may use this information, as long as it is in a form that does not personally identify the user, to improve its products or to provide services or technologies.
5. Representations and Warranties. You represent and warrant that: (i) you have all the rights, power and authority (including without limitation all required third party licenses or permissions) to engage in the activity contemplated by this Agreement; (ii) the Site will not contain material which is unlawful, obscene, harmful, threatening, harassing, defamatory or hateful or that contains objects or symbols of hate, invades the privacy of any third party, violates any third party’s intellectual property rights, contains any pornography, erotica, child pornography or child erotica, is deceptive, threatening, abusive, inciting of unlawful action, defamatory, libelous, vulgar or violent or constitutes hate speech or is otherwise objectionable in the opinion of Podtrac; and (iii) you are responsible for all activity related to or content provided on your Site, and Podtrac disclaims any and all liability relating thereto.
6. Disclaimer. YOU ASSUME ALL RESPONSIBILITY AND RISK OF USE OF THE PODTRAC PLAYER. THE PLAYER IS provided to you "AS IS" WITHOUT any WARRANTIES OF ANY KIND. PODTRAC DOES NOT WARRANT THAT THE PLAYER WILL MEET YOUR REQUIREMENTS OR THAT THE PLAYER WILL BE ERROR-FREE. PODTRAC EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON INFRINGEMENT AND ANY WARRANTIES AND CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM PODTRAC OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT.
7. Term and Termination.
(a) This Agreement remains effective until terminated by either party. Podtrac may terminate this Agreement without notice, at any time and for any reason. You may terminate it at any time by removing and/or deleting the Player from your Site. This Agreement will automatically terminate without notice if you breach any term of this Agreement.
(b) Upon any termination, you will promptly remove and/or delete the Player from your Site and destroy any copies in your possession or control. Sections 2, 5, 6, 7(b), 8, 9 and 10 will survive any termination of this Agreement.
8. Indemnity. You agree to defend, indemnify and hold Podtrac and its officers, directors, and employees harmless from and against any loss, liability, costs or expenses (including but not limited to reasonable attorneys’ fees) arising from or incurred as a result of: (i) any third party claims, to the extent that such claims relate to or are based on your breach of this Agreement; (ii) your embedding, posting or use of the Player; and (iii) your Site and any claim that it or any content therein infringes any third party’s intellectual property rights.
9. Limitations of Liability. IN NO EVENT WILL PODTRAC BE LIABLE TO YOU FOR ANY DIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) OR FOR the cost of procuring substitute products ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR DISTRIBUTION OF THE PLAYER, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT PODTRAC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE FOREGOING LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. IN ANY CASE, PODTRAC’S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT WILL NOT EXCEED THE AMOUNTS OF THE FEES THAT YOU PAID FOR THE PLAYER (IF ANY). Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you.
10. General Provisions. This Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Virginia, without regard to or application of conflicts of law rules or principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply. You may not assign or transfer this Agreement or any rights granted hereunder, by operation of law or otherwise, without Podtrac’s prior written consent, and any attempt by you to do so, without such consent, will be void and of no effect. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. Any notice or other communications to be given under this Agreement will be in writing and given (a) by Podtrac via email (in each case to the address that you provide), (b) posting on the Podtrac website located at http://www.podtrac.com/ or (c) by you via email to email@example.com or such addresses Podtrac may specify in writing. The date of receipt will be deemed the date on which such notice is transmitted. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by authorized representatives of both parties. If any provision of this Agreement is held to be unenforceable or invalid, that provision will be enforced to the maximum extent possible and the other provisions will remain in full force and effect. This Agreement is the complete and exclusive understanding and agreement between the parties regarding its subject matter and supersedes all proposals, understandings or communications between the parties, oral or written, regarding its subject matter, unless you and Podtrac have executed a separate agreement.
11. Contact Information. If you have any questions regarding this Agreement, you may contact Podtrac at firstname.lastname@example.org
Last updated: April 24, 2009