Podvertise.fm Terms of Service
Podvertise.fm values our relationship with you. The terms below are meant to ensure that all parties are happy and successful. This Podvertise.fm Terms of Service ("Agreement") between You and Podvertise.fm, LLC. constitute the terms and conditions for Your use of the Podvertise.fm Marketplace service (the "Marketplace") and/or the Podvertise.fm Full-Service Offering ("Advertising Service"). The Advertising Service and the Marketplace are referred collectively in this Agreement as the "Services" and individually, as a "Service." "You" or "Your" means you or any other person or entity identified in any Service account on whose behalf you are authorized to act. By creating any Service account via the online user interface provided by Podvertise.fm for accessing the Services ("Podvertise.fm UI"), or by otherwise accessing or using any of the Services, You agree that You have the authority to bind and You agree to be bound by the terms of this Agreement. If You do not agree to the terms of this Agreement, do not create a Service account, or access or use any Service. This Agreement does not alter in any way the terms or conditions of any other agreement You may have with Podvertise.fm for products, services or otherwise. Podvertise.fm's Agreement is a non-exclusive agreement meaning we do not prevent you from getting advertisers/sponsors outside of our platform. But if the advertiser relationship originated through our platform or service, then all communications and advertising sales transactions must take place within Podvertise.fm for up to one full-year from the most recent ad spot completed.
1. Description of Services
The Marketplace allows You, as a publisher, to setup a listing and offer and sell ad units of a podcast that You designate for placement of ads ("Inventory") to any advertiser, advertising network, ad agency, or other participant in the Marketplace, who purchases Inventory listed by You via the Marketplace ("Podcast Advertiser(s)"). Podcast Advertisers may order and promote their product or service ("Podcast Ad(s)") on Inventory made available via Your podcasts, podcast-related websites, and social media (collectively, "Publisher Network"), based upon the selling criteria selected by You via the Podvertise.fm UI.
2. Revenue Share and Payouts
Podvertise.fm will remit a percentage of the "Gross Marketplace Revenue" (as defined below) that Podvertise.fm receives from the sale of Your Inventory to Podcast Advertisers, in U.S. Dollars. The amount resulting from applying such percentage to the Gross Marketplace Revenue will be the "Revenue Share Fee." "Gross Marketplace Revenue" means fees actually collected by Podvertise.fm from Podcast Advertisers in connection with any Ads served to the Publisher Network, less Podvertise.fm's commission. Standard commission rate is 15%, but Podvertise.fm and Publisher Network may agree to a variation on the commission rate in writing. Podvertise.fm also reserves the right to offer negotiated pricing and/or commission rate on any advertising order.
You are responsible for all Taxes (if any) associated with the Services. Each party shall remit the amounts due after deducting any and all Taxes that may be applicable to any applicable remittances. Specifically, Podvertise.fm may deduct or withhold any withholding taxes that Podvertise.fm may be legally obligated to deduct or withhold from any amounts due to You under the Agreement, and remittance to You as reduced by such deductions or withholdings will constitute full remittance and settlement of amounts due to You under the Agreement
Publishers are paid via Paypal 60-days for exclusive shows and 90-days for non-exclusive shows after each ad spot is marked complete in our system, AND the reach has been reported by Publisher on that spot, AND the total amount Publisher is owed is $50 or more. For Publishers opting out of Podvertise.fm automated payouts, an invoice will be required in order to be paid for completed ad spots, which will be paid following the completion of the ad spots AND payment has been received from Advertiser. Publisher will forfeit payouts if any of the following scenarios occur:
- Publisher fails to report reach for any ad spot within 6 months of ad spot completion, or;
- Publisher which has opted out of automatic payments fails to invoice Podvertise.fm within 6 months of completion of any ad spot, or;
- Publisher fails to receive a processed payment via a valid PayPal within 6 months of completion of any ad spot, or;
- Publisher fails to cash any check within 6 months of the date of check issuance. In this scenario, Podvertise.fm will send a reminder to Publisher to cash the check and if check is not cashed within 30 days following the reminder, check will be cancelled and Publisher will forfeit the associated payout.
3. Service Implementation
By using our service, you agree to keep your podcast listing up to date with accurate and present time data. Failure to do so, may result in account suspension, provided that Podvertise.fm will give You at least 30 days' written notice prior to suspending your account in order to allow You to update Your podcast listing.
4. Other Obligations
- Content - in the Podvertise.fm Marketplace. With respect to Your use of the Podvertise.fm Marketplace, You are solely responsible for your Inventory, including handling all related inquiries, fulfilling the ad, communication with the advertiser, and managing the ad buy. You are responsible for the advertising/promotion/endorsement/content you sell and produce/fulfill for the advertiser. If you do not complete the advertising work as stated by your listing, funds will not be transferred to your account and the advertiser may leave negative feedback. If you feel you did fulfill the agreement, please contact us and we will review the case.
- Programs. Advertiser authorizes Podvertise.fm and its affiliates to place customer's advertising materials and related technology (collectively, "Ads" or "Creative") on any content or property (each a "Property") provided by Podvertise.fm or its affiliates ("Publishers") on behalf of itself or, as applicable, a third party ("Partner"). Customer is solely responsible for all: (i) Creative, (ii) Sponsor verbiage, (iii) Properties to which Creative directs viewers (e.g., landing pages) along with the related URLs and redirects ("Destinations"). The Program is an advertising platform on which Customer authorizes Podvertise.fm use tools to format Ads.
- Your Account. You will protect the Podvertise.fm account You use to access any of the Services ("Account") and any usernames or passwords associated with the Account ("Credentials") against any unauthorized access and use, and will take full responsibility for Your own, and any authorized or unauthorized third party, use of the Credentials and/or the Account. You will ensure that all information in Your Account, including but not limited to, full name, contact address, and Paypal account information is up-to-date, complete and accurate. You acknowledge and agree that any remittances owed to you in connection with your use of the Marketplace may be delayed in the event that Your Account information is not up-to-date, complete and accurate. You may grant access to Your Account to third parties approved by Podvertise.fm solely to allow such third parties to access and manage Your Account on Your behalf; provided, however, that You shall (i) require that such third parties agree to be bound by the terms of this Agreement; (ii) ensure that such third parties comply fully with all provisions of this Agreement, and (iii) be fully responsible and liable for the acts and omissions of such third parties. Misrepresenting ownership and fraudulent claiming of applications and/or podcast advertising inventory in the Podvertise.fm UI is strictly prohibited and may result in a permanent ban from the Services. You agree that to the extent You create a new account, it must be pre-approved by Podvertise.fm and registered to You; if not pre-approved or registered with the same entity or name, any right to any remittance is automatically waived by You. In order to make payments in connection with Your use of Marketplace, Podvertise.fm uses a third-party payment processor ("Payment Processor") to link the payment information You provide, including Your Paypal email address, tax and bank account information, to the Marketplace and Your Account. The processing of payments in connection with Your use of the Services will be subject to the terms, conditions and privacy policies of the Payment Processor, PayPal and/or Your bank in addition to this Agreement. Podvertise.fm will not be responsible or liable for any errors made by the Payment Processor.
- Misleading Reach/Impressions/Downloads. You shall not, and shall not knowingly allow or encourage third-parties to run "robots" or "spiders" against any of Your Publisher Network or use any means to artificially increase the number of impressions/downloads or End User taps or clicks on Publisher Ads or Demand Ads displayed on Your Publisher Network ("Clicks") via the Marketplace, including, but not limited to by engaging in any of the following activities: encouraging visits to landing pages or using promo codes with offers of cash, prizes or anything else of value in exchange for services (except for standard advertiser offers or publisher rewards programs that are compliant with this Agreement). You represent and warrant that there will not be any fraudulent Listens, Downloads, Clicks, Inducements, or Unintended Clicks via the Publisher Network. You agree to indemnify and hold harmless Podvertise.fm with respect to any claims by an Advertiser related to fraudulent Listens, Downloads, Clicks, Inducements, Unintended Clicks, or Advertiser Offers. Podvertise.fm shall not be liable for any advertising fees based on fraudulent Listens, Downloads, Clicks, Inducements, and/or Unintended Clicks. Final judgment on what constitutes fraudulent Clicks, Inducement and/or Unintended Clicks shall be in the sole discretion of Podvertise.fm.
- Child-Directed Podcasts. You represent and warrant that (i) no podcast or application within the Publisher Network is a podcast or online service directed to children, as defined under the Children's Online Privacy Protection Act ("COPPA"), and (ii) You will not transmit any "Personal Information" (as defined under COPPA) about or relating to an individual under the age of 13 to Podvertise.fm.
Either party may cancel any advertising order with the status of "Pending" at any time. If Advertiser wishes to cancel an advertising order that is in progress, then Advertiser is responsible according to the cancellation terms outlined in the proposal and insertion order.
The publisher in the absence of any specific cancellation terms, will be paid in full for any ad spots scheduled to run within a 14 day window.
6. Advertiser Payments
When the podcaster approves the ad buy, you will be invoiced or charged via credit card in full (for all ad spots with that podcast). For any ad spots that do not air or get cancelled, your card will be credited. You only pay for completed verified ad spots. Advertiser will pay ALL charges incurred in connection with the order, in immediately available funds or as otherwise approved by Podvertise.fm, within a commercially reasonable time period specified by Podvertise.fm. Late payments bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). Customer will pay (i) all taxes and other government charges and (ii) reasonable expenses and attorneys' fees Podvertise.fm incurs in collecting late payments. Charges are solely based on Podvertise.fm's measurements for the Programs and the applicable billing metrics. Any portion of a charge not disputed in good faith must be paid in full. No party may offset any payment due under these Terms against any other payment to be made under these Terms. Podvertise.fm may, in its sole discretion, extend, revise or revoke credit at any time. Podvertise.fm is not obligated to deliver any Ads in excess of any credit limit. If ads are not performed to Customers satisfaction, they must reach out to the publisher. If the publisher never completes the ad, the advertiser will not be charged or will be credited the difference if already charged.
- License to Publisher Ads. During the Term and in connection with your use of the Podvertise.fm Platform, You hereby grant Podvertise.fm a limited license to host, serve, route and place Advertiser Ads via the Podvertise.fm Platform.
- License to Podvertise.fm Marketplace. Subject to the terms and conditions of this Agreement, You shall have the right during the Term to access and use the Podvertise.fm Marketplace solely for purposes of: (i) listing Inventory available on the Publisher Network for sale on the Podvertise.fm Marketplace, and (ii) receiving reports of Podcast Ads requests, impressions and other data related to the delivery of Podcast Ads through the Podvertise.fm Marketplace.
- Marketing and Publicity. Podvertise.fm shall have the right to and You hereby grant Podvertise.fm a non-exclusive, royalty-free, worldwide, fully paid-up license under all of Your applicable rights to use and display Your name, trademarks, trade names, service marks and/or logos as well as those of the sites and applications in the Publisher Network in customer lists, website listings of customers, presentations, marketing materials, case studies, blog posts and other marketing-related activities.
8. Term; Termination
The term of this Agreement will commence on the date You create a Service account via the Podvertise.fm UI and agree to the terms of this Agreement, and will continue until terminated by either party as provided in this Agreement ("Term"). You may terminate this Agreement, with or without cause, at any time by sending written (via email) notice to email@example.com provided that such termination will become effective upon the earlier of 10 business days after Podvertise.fm's receipt of such notice or the date upon which, after receiving such notice, Podvertise.fm suspends Your ability to access or use the Service or terminates Your Account. Podvertise.fm may terminate this Agreement or any Account, with or without cause, in Podvertise.fm's sole discretion, at any time. Upon termination of this Agreement, (a) any licenses granted to You in this Agreement will automatically terminate, and You must immediately cease all use of any of the Services. Further, upon expiration or termination, if You are a Marketplace customer and if Your account balance is less than US $5 (the "Termination Threshold"), such earned balance below the Termination Threshold will not be paid and will automatically be forfeited and Podvertise.fm will own any such amounts. If Your earned balance at the time of expiration or termination is greater than the Termination Threshold, Podvertise.fm will remit the amount earned within approximately 7 days of the end of the month of expiration or termination to You. Podvertise.fm will attempt to pay You for undisputed amounts earned and unpaid, however, if Podvertise.fm is unable to remit payment to You due to You or circumstances beyond Podvertise.fm's control, You will automatically forfeit all such amounts and Podvertise.fm will own any such amounts.
9. Account Suspension; Discontinuance
Podvertise.fm has the right, in its sole discretion, with or without notice, to suspend any podcast or advertiser from Your Account or Your access to the Podvertise.fm UI or any Service. Podvertise.fm reserves the right to modify or discontinue, temporarily or permanently, any Service or Podvertise.fm Code, or any features or portions thereof, without prior notice. You agree that Podvertise.fm will not be liable for damages of any sort that result from any such suspension, modification, or discontinuance of Your Account.
10. Data Use
In connection with the operation of any Service, Podvertise.fm and You may collect and receive Service Data. "Service Data" includes any information that You or Podvertise.fm collect during the ad buying process of delivery of ads or the performance of obligations under this Agreement, including End User device information, End User's session-based browsing behavior, information about ads served, downloaded, streamed, viewed, or clicked on, http header information, and any other data that You elect to provide Podvertise.fm. You agree that Podvertise.fm will have the right to: (a) use and disclose Service Data (i) to provide any of the Services, (ii) for its internal business purposes, (iii) to improve any products or services provided by Podvertise.fm, and (iv) to enable, and allow for the improvement of, services provided by Podcast Advertisers and other third party partners; (b) use and disclose Service Data as may be required by law or legal process; and (c) use and disclose Service Data when it is aggregated, such that it does not identify You, any End User, or individual device. You may use Service Data that You receive for Your internal business purposes so long as such use is in compliance with all applicable privacy policies, laws, rules, regulations and industry self-regulatory regimes relating to the collection, use and disclosure of Service Data, and that You obtain any and all consents, waivers, approvals, authorizations and clearances from End Users that may be required by applicable laws in connection therewith.
Podvertise.fm covenants that, in providing the Services, Podvertise.fm: (a) will not collect Personally Identifiable Information (as defined by any and all applicable United States privacy laws) from End Users; (b) will not collect Personal Data (as defined by the General Data Protection Regulation) from End Users in the European Economic Area; and (c) will comply with all applicable privacy laws and regulations.
11. Confidentiality; Publicity; Ownership
You agree not to disclose Podvertise.fm Confidential Information (defined below) without Podvertise.fm's prior written consent and to use at least the same degree of care to prevent unauthorized use and disclosure of such Podvertise.fm Confidential Information as You use with respect to Your own confidential information (but in no event less than a reasonable degree of care). "Podvertise.fm Confidential Information" includes any and all information that is disclosed by Podvertise.fm, either directly or indirectly, in writing, orally or by inspection of tangible objects, which if disclosed in writing or tangible form is marked as "Confidential," or with some similar designation, or if disclosed orally, is identified as being proprietary and/or confidential at the time of disclosure, or under the circumstances and nature of the information would be reasonably deemed to be confidential, and includes the features and functionality of any Service. Podvertise.fm Confidential Information does not include information that: (a) is or becomes generally known to the public through no fault of or breach of this Agreement by You; (b) is rightfully known by You at the time of disclosure without an obligation of confidentiality; (c) is independently developed by the You without use of or reference to Podvertise.fm's Confidential Information and without any violation of any obligation of this Agreement; or (d) You rightfully obtain from a third party lawfully in possession of such information without restriction on use or disclosure.
12. User Conduct of Service
While using the Service, you may not knowingly:
- Restrict or inhibit any other user from using and enjoying the Service; or
- Misrepresent your content, RSS feed, your business, or your business activities in any way; or
- Use the service for any unlawful, fraudulent, libelous, defamatory, threatening, abusive, hateful, or otherwise objectionable activity of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, national or foreign law, including without limitation the U.S. export control laws and regulations; or
- Post or transmit any information or software which contains a virus, trojan horse, worm or other harmful component; or
- Post, publish, transmit, reproduce, distribute or in any way exploit any information, software or other material obtained through the Service for commercial purposes other than as expressly permitted by Podvertise.fm of such information, software or other material; or
- Upload, post, publish, transmit, reproduce, or distribute in any way, information, software or other material obtained through the Service which is protected by copyright or other proprietary right, including Advertiser proprietary business practices and information, derivative works with respect thereto, without obtaining permission of the copyright owner or rightholder; or
- Upload, post, publish, reproduce, transmit or distribute in any way any component of the Service or derivative works with respect thereto, as the Service is copyrighted as a collective work under U.S. copyright laws.
Unless otherwise indicated for a particular communication, any communications or material of any kind that you e-mail, post or otherwise transmit through this Website, including data, questions, comments or suggestions ("your Communications") will be treated as non-confidential and nonproprietary. In addition, Podvertise.fm is free to use extra communications from social media outlets that are used in conjunction with podcast advertising "Extras" monetary commitments.
13. Failure to Comply with Terms and Conditions and Termination
You acknowledge and agree that Podvertise.fm may terminate account or deny you access to all or part of the Service without prior notice if you engage in any conduct or activities that Podvertise.fm in its sole discretion believes violate any of the terms and conditions, violate the rights of Podvertise.fm, or is otherwise inappropriate for continued access.
You acknowledge and agree that Podvertise.fm may in its sole discretion deny you access through Podvertise.fm to any materials stored on the Internet, or to access third party services, merchandise or information on the Internet through Podvertise.fm, and Podvertise.fm shall have no responsibility to notify any third-party providers of services, merchandise or information nor any responsibility for any consequences resulting from lack of notification.
You agree to defend, indemnify and hold Podvertise.fm and its affiliates harmless from any and all claims, liabilities, costs and expenses, including reasonable attorneys' fees, arising in any way from your use of the Service or the placement or transmission of any message, information, software or other materials through the Service by you or users of your account or related to any violation of these Terms of Service by you or users of your account.
14. Limitation of Liability
- in no event shall either party be liable to the other for any lost profits or special, punitive, incidental, consequential or other indirect damages, however caused and whether in contract, tort or under any theory of liability, and whether or not such party has been advised of the possibility of such damages. excluding payment obligations, in no event shall either party's aggregate liability to the other arising out of this agreement exceed the greater of $10,000 or sum of the sum of revenue share fee paid under this agreement. these limitations shall apply notwithstanding the failure of the essential purpose of any limited remedy.
- the limitations found in 13.a shall not apply to: (a) a claim for indemnification; or (b) the gross negligence; willful or intentional misconduct; dishonesty; or fraudulent, criminal or malicious conduct of the party seeking to limit its damages.
Each party (in such capacity the "Indemnifying party") agrees to indemnify, defend and hold harmless the other party and its officers, directors, employees, and agents (each an "Indemnified party") against any and all third-party claims or liabilities (including interest, penalties and reasonable attorneys' fees) arising out of or related the Indemnifying party's: (i) breach or alleged breach of the Agreement; (ii) infringement of a third party's U.S. patent, trademark, trade secret or copyright; or (iii) violation of any applicable law or regulation.
16. Intellectual Property
Podvertise.fm is the owner and/or authorized user of any trademark, registered trademark and/or service mark appearing at the Podvertise.fm Website (the "Website"), and is the copyright owner or licensee of the content and/or information on this Website including but not limited to any screens appearing at the Website. You may not download and/or save a copy of any of the screens except as otherwise provided in these Terms of Service, for any purpose. However, you may print a copy of the information on this Site for your personal use or records. If you make other use of this Website, except as otherwise provided above, you may violate copyright and other laws of the United States, other countries, as well as applicable state laws and may be subject to penalties. Podvertise.fm does not grant any license or other authorization to any user of its trademarks, registered trademarks, service marks, or other copyrightable material or other intellectual property, by placing them on the Website unless Podvertise.fm provides written permission.
17. Links From and To Websites
You acknowledge and agree that Podvertise.fm and any of its website co-branding providers have no responsibility for the accuracy or availability of information provided by linked sites. Links to external web sites do not constitute an endorsement by Podvertise.fm or its Website.
18. Other Information
Podvertise.fm is taking reasonable and appropriate measures, including encryption, to ensure that your personal information is disclosed only to those specified by you. However, the Internet is an open system and we cannot and do not guarantee that the personal information you have entered will not be intercepted by others and decrypted.
The Terms of Service and the relationship between you and Podvertise.fm shall be governed by the laws of Wisconsin without regard to its conflict of law provisions. You and Podvertise.fm agree to submit to the personal and exclusive jurisdiction of the courts located within the state of Wisconsin. The failure of Podvertise.fm to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision. If any provision of the Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Terms of Service remain in full force and effect.
20. Force Majeure
Neither party will be liable for nor be considered in breach of or default under the Agreement delay or failure to perform as required by the Agreement as a result of strike, fire, explosion, flood, storm, material nationwide or worldwide shortages, riot, insurrection, governmental acts, labor conditions, acts of God, war, acts of terrorism, earthquake or any other cause which is beyond the reasonable control of such party (a "Force Majeure Event"). If a Force Majeure Event prevents either party from fulfilling its obligations under this Agreement for more than four (4) contiguous weeks, either party may terminate this Agreement, immediately and without penalty, upon written notice to the other party. Notwithstanding the foregoing, any delay or failure to perform by either party caused by equipment failures, failures by third parties under direct contract to the party, or other failures that could have been avoided by means of commonly accepted redundancy practices, will not constitute a Force Majeure Event and in such event the party shall remain responsible for its obligations herein.
21. General Terms and Conditions
Podvertise.fm may change the Terms of Service from time to time. By continuing to use the Service following such modifications, you agree to be bound by such modifications to the Terms of Service. Use of some services or content accessible through Podvertise.fm may require acceptance of separate agreements with Podvertise.fm and/or third parties. In consideration of your use of this Service, you agree to: (a) provide true, accurate, current, and complete information about yourself, your content (i.e. podcast or online content) and corresponding RSS, and your business as prompted by the Registration Form, and (b) to maintain and update this information to keep it true, accurate, current and complete. If any information provided by you is untrue, inaccurate, not current or incomplete, Podvertise.fm has the right to terminate your account and refuse any and all current or future use of the Service, and/or payouts. You agree not to resell or transfer the Service or use of or access to the Service. You acknowledge and agree that you must: (a) either use Podvertise.fm World Wide Web access or provide your own access to the World Wide Web and pay any service fees associated with such access, and (b) provide all equipment necessary for you to make such connection to the World Wide Web, including a computer and modem or other access device.