1. License to use Application; Your Rights and Obligations
1.2 You understand that all information, data, text, software, sound, photographs, graphics, video, messages, tags, or other materials available in connection with the Application (“Content”) are the sole responsibility of the person from whom such Content originated. We do not control, monitor, endorse, sponsor or approve any Content and do not guarantee the accuracy, integrity, or quality of such Content. You understand that by using the Application, you may be exposed to Content that is offensive, indecent, or objectionable. Under no circumstances will we be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content made available on the Application.
1.3 You acknowledge and agree that (i) we retain complete editorial control over the Application and may alter, amend or cease the operation of the Application at any time in our sole discretion without notice to you; and (ii) the Application may be unavailable from time to time (including for maintenance purposes).
1.4 You may not:
(i) remove any copyright, trademark or other proprietary rights notices from the Application or any Content;
(ii) edit, reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, public perform, stream, broadcast or otherwise exploit the content on the Application unless expressly permitted in writing by Pocket Casts;
(iii) decompile, reverse-engineer or disassemble any features of the Application; or
(iv) utilize any programs or scripts for the purpose of scraping, indexing, measuring or otherwise data mining any parts of the Application or otherwise hindering the functionality of any part of the Application.
2. Intellectual Property Rights
2.1 The Application and the Content are the property of Pocket Casts and its licensors, and are protected by copyright, trademark, and other laws of both the United States and foreign countries. Nothing in these Terms constitutes a transfer of any intellectual property rights. Our trademarks and trade dress may not be used in connection with any product or service without our prior written consent.
2.2 If you provide us any feedback, ideas and suggestions about the Application or Content (“Feedback”), you assign to us, your entire right, title and interest (including, without limitation, all patent rights, design rights, copyrights and trade secrets) in the Feedback. To the extent such rights cannot be assigned, you hereby waive such rights as to Pocket Casts, its affiliates and its and their customers and business partners.
3. Disclaimer of Warranties; Limitation of Liability; Consequential Damages and Indemnity
3.1 The Content and Application are provided to you “as is” and without warranty. Pocket Casts and its subsidiaries, affiliates, officers, employees, agents, partners, and licensors (collectively, the “Pocket Casts Parties”) hereby disclaim all warranties with regard to same, including, without limitation, (a) all implied warranties and conditions of merchantability, fitness for a particular purpose, performance, accuracy, reliability, availability, compatibility, title and noninfringement; (b) any errors or defects will be corrected; (c) the Application is free of viruses or other harmful components; or (d) the results of using the Application will meet your requirements. Your use of the Application and any Content (including any third-party service or advertisement available through the Application) is at your own discretion and risk and you are solely responsible for any damage to your computer system or other device, or your loss of data, profits or revenue (or any other punitive, incidental, special or consequential damage) that directly or indirectly results from such use.
3.2 To the full extent permitted by applicable law, you acknowledge and agree that the aggregate liability of the Pocket Casts Parties collectively for claims arising under the Terms or otherwise howsoever arising shall be limited ten dollars (USD$10.00). This limitation of liability is cumulative and not per-incident (i.e., the existence of two or more claims will not enlarge this limit). This limitation will not exclude liability for our willful misconduct or gross negligence.
3.3 You expressly agree to release the Pocket Casts Parties from any and all liability connected with your activities, and promise not to sue the Pocket Casts Parties for any claims, actions, injuries, damages, or losses associated with your activities, whether based on contract, tort, strict liability, or otherwise, even if Pocket Casts has been advised of the possibility of damages. Because some states/jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply to you.
3.4 You agree to indemnify, defend and hold harmless all Pocket Casts Parties, from any and all claims, demands, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising from your use of the Application or your violation of the Terms.
4.1 These Terms terminate automatically if, for any reason, we cease to operate the Application. Section 2-8 of these General Terms will survive termination.
4.2 Pocket Casts retains the right to terminate these Terms immediately if you have breached these Terms in any way.
Except as set forth elsewhere in these Terms to the contrary, any dispute, controversy or claim relating to these Terms or the Application shall be resolved through a confidential, final, binding, and non-appealable arbitration under the rules of the American Arbitration Association (the “AAA”) in effect from time to time (with right to engage in pre-hearing discovery in connection with such arbitration proceedings if approved by the arbitrator). The place of arbitration shall be in New York County, New York. A single arbitrator shall be appointed by agreement between the parties or, failing such agreement, by the AAA. The parties hereto agree that each party will only be permitted to bring claims against the other party only on an individual basis and not as a plaintiff or class member in any purported class or representative action or proceeding. Unless both parties agree in writing otherwise, the arbitrator may not consolidate or join more than one person’s or party’s claims and may not otherwise preside over any form of a consolidated, representative, or class proceeding. In addition, the arbitrator may award relief (including monetary, injunctive, and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party’s individual claim(s). Any relief awarded cannot affect other contributors or users. The arbitrator may grant any remedy that he or she deems just and equitable within the scope of these Terms. The award of the arbitrator shall be final and binding and judgment thereon may be entered in any court having jurisdiction. The costs and expenses (including reasonable attorney’s fees) of the prevailing party shall be borne and paid by the part(ies) that the arbitrator determines are the non-prevailing part(ies). Notwithstanding the foregoing, either party may seek interim or temporary injunctive relief in any court of appropriate jurisdiction with respect to any alleged breach of such party’s intellectual property or proprietary rights. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then this arbitration provision shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
6. Third Party Sites
7. Digital Millennium Copyright Act
We follow the notice and take down provisions of the Digital Millennium Copyright Act (the “DMCA”). In addition, we may terminate the account and access rights of any repeat infringer in appropriate circumstances. If you are a copyright owner or the legal agent of a copyright owner, and you believe that any Content infringes upon your copyrights, you may submit a notification pursuant to our DMCA Policy by sending an email to email@example.com with a subject line beginning “DMCA Notice” that contains the following information:
(i) A physical or electronic signature of a person authorized to act on behalf of the owner or an agent of an exclusive right that is allegedly infringed;
(ii) Identification of the copyright claimed to have been infringed;
(iii) Identification of the material that is claimed to be infringing, and where it is located in the App or Service, as applicable;
(iv) Information reasonably sufficient to permit us to contact you;
(v) A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(vi) A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
We respect the intellectual property rights of others and will respond to clear notices of alleged infringement. You acknowledge that if you fail to comply with all of the requirements of this section, your notice may not be valid.
8.1 Severability. In the event that one or more terms of these Terms becomes or is declared to be illegal or otherwise unenforceable by any court of competent jurisdiction, each such term shall be deemed deleted from these Terms in such jurisdiction. All remaining terms of these Terms shall remain in full force and effect and such deletion shall not apply to the Terms in other jurisdictions.
8.2 Applicable Law. These Terms and the Application and any action related thereto shall be governed, controlled, interpreted and defined by and under the laws of the State of New York, without regard to the conflicts of laws provisions thereof. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms. This Application is controlled by Pocket Casts from within the United States of America. We make no representation that the Content or the Application are appropriate or available for use in other locations, and access to them from territories where their content or use is illegal is prohibited. Those who choose to access the Application from locations outside of the United States do so on their own initiative and are responsible for compliance with applicable local laws. You may not use or export the Content or the Application in violation of U.S. export laws and regulations.
8.3 The failure of us to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. Our notice to you via email, regular mail, or notices or links on the Application shall constitute acceptable notice to you under these Terms.
8.4 These Terms constitutes the entire agreement between us and unless specifically stated in these Terms, no other representation, document or statement shall be considered part of these Terms.