Podtrac Terms of Service Agreement
Thanks for visiting Podtrac.com. Please read this Terms of Service Agreement (“Agreement”) carefully, as it covers the terms and conditions that apply to your use of this website (“Website” or “Site”) and associated services identified below (the “Services”).
THIS AGREEMENT SETS FORTH THE LEGALLY BINDING TERMS FOR YOUR USE OF THE SITE AND SERVICES. BY ACCESSING OR USING THE SITE OR SERVICES, YOU ARE ACCEPTING THIS AGREEMENT AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY AND CAPACITY TO ENTER INTO THIS AGREEMENT. YOU MAY NOT ACCESS OR USE THE SITE OR SERVICES OR ACCEPT THIS AGREEMENT IF YOU ARE NOT AT LEAST 18 YEARS OLD. IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THIS AGREEMENT, DO NOT ACCESS AND/OR USE THE SITE OR SERVICES. IF YOU ARE USING THE SITE OR SERVICES ON BEHALF OF A COMPANY, ENTITY OR ORGANIZATION, YOU REPRESENT AND WARRANT THAT YOU ARE AN AUTHORIZED REPRESENTATIVE OF SUCH COMPANY, ENTITY OR ORGANIZATION WITH THE AUTHORITY TO BIND IT TO THIS AGREEMENT.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION THAT INCLUDES A WAIVER OF YOUR RIGHT TO A JURY TRIAL, A CLASS ACTION WAIVER, A CHOICE OF LAW PROVISION AND A FORUM SELECTION CLAUSE.
Podtrac may change this Agreement from time to time. Podtrac will post any updated terms on this Site, as well as the effective date of such updates. By continuing to use the Site and/or Services following such modifications, you agree to be bound by such modified Agreement. Use of some products, services or content accessible through Podtrac, this Site or the Services may require acceptance of separate agreements with Podtrac and/or third parties, the terms of which will be presented to you for acceptance in connection with your use thereof.
Podtrac provides the following Services, as well as other Services offered through or in connection with this Site and/or such Services:
Podtrac provides podcast publishers with free audience measurement and demographic survey research for their shows (“Audience Measurement Services”).
Data gathered via Podtrac’s Audience Measurement Services provides advertisers and agencies with show reach and demographic information.
In order to access and use the Services you must register for an account with Podtrac. As a condition of your use of the Services, you agree: (a) to provide true, accurate, current and complete information about yourself, your content (e.g., podcast or online show) and corresponding RSS (if applicable), and your business 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, Podtrac has the right to terminate your account and prohibit your use of the Services. You agree not to license, sublicense, assign, sell, resell or transfer the Services or your use of or access to the Services; you also agree not to use the Services on behalf or for the benefit of any third party.
You are responsible for maintaining the confidentiality of your user name(s), password(s) and/or other tokens used to authenticate your use of the Services. You hereby take responsibility for all actions taken—and instructions provided to Podtrac—under your account, by you or any third parties, whether or not authorized. You will notify Podtrac immediately of any unauthorized or non-compliant use of your account and will cooperate with Podtrac in its efforts to cease such use.
License to Audience Measurement Service
The Services, including the Audience Measurement Service, and all other materials provided by Podtrac hereunder, and all intellectual property rights in each of the foregoing, are the exclusive property of Podtrac and its licensors or suppliers.
Subject to the terms and conditions of this Agreement, Podtrac grants to you a limited, royalty-free, non-exclusive, non-transferable, revocable license to access and use the Audience Measurement Service during the term of this Agreement solely for your internal business purposes. Podtrac hereby reserves all rights not expressly granted herein. Any use of the Podtrac Measurement Service other than as specifically authorized herein, without the prior written consent of Podtrac, is strictly prohibited and will automatically terminate the license granted herein. (Podtrac currently does not charge for the Audience Measurement Service. However, Podtrac reserves the right to charge a fee in the future for access to and use of the Audience Measurement Service.)
You agree that you will not, and you will not permit any third party to, directly or indirectly: (a) access or use the Services, including the Audience Measurement Service, except as expressly authorized under this Agreement, unless with Podtrac’s express permission; (b) modify, adapt, alter or translate the Audience Measurement Service; (c) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Audience Measurement Service; (d) access or use the Services, including the Audience Measurement Service, to build a similar or competitive product or service; or (e) sell, rent, lease, sublicense, or otherwise transfer or make available the Audience Measurement Service or any portion thereof.
Measurement and Survey Data
You acknowledge and agree that Podtrac shall (a) have the right to use all measurement data and survey data (collectively, “Measurement Data”) generated by your use of the Services, and (b) own all right, title and interest in and to (i) any and all compilations of such Measurement Data (e.g., with data relating to other licensees of the Audience Measurement Service) and (ii) all results and conclusions developed by Podtrac derived from such Measurement Data (“Measurement Results”), including monthly unique audience rankings and other rankings (the Measurement Data and Measurement Results are together referred to herein as the “Measurement Data and Results”).
Notwithstanding the foregoing, Podtrac hereby grants to you a limited, royalty-free, non-exclusive, non-transferable, revocable license to use and display, on your own website, on third-party websites or in other promotional material for your business and promotional purposes, any such Measurement Data and Results that Podtrac, in its sole discretion, elects to publicly display on this Site (“Published Data and Results”) or data that you export from the Site, in exactly the form (e.g., the exact chart) in which such Published Data and Results is displayed on the Site, provided that (i) you do not manipulate or modify any Published Data and Results or state or suggest different results from those specifically presented by Podtrac; (ii) you do not combine the Published Data and Results with or juxtapose the Published Data and Results against any other information relating to different measurement or survey profiles; (iii) you do not aggregate or combine information in the Published Data and Results with information derived from other sources; (iv) you do not use the Published Data and Results in any way that competes with Podtrac and/or the Services; (v) in the event you provide any Published Data and Results to any third party, you must ensure that such third party agrees to be bound by and comply with the requirements herein; and (vi) you agree that any use and/or publication of the Published Data and Results, includes attribution to Podtrac next to each display thereof as follows:
For Podtrac Audience Survey Data: “Podtrac Audience InsightsSM Survey, Copyright 201_ by Podtrac, Inc.” Note that the “Podtrac Audience Insights(SM) Survey” text must be hyperlinked to http://podtrac.com/podcast-demographics/.
For Podtrac Measurement Data: “Podtrac Measurement Data, Copyright 201_ by Podtrac, Inc.” Note that the “Podtrac Measurement Data” text must be hyperlinked to http://podtrac.com/podcast-measurement/.
You may, at your sole discretion, provide comments, suggestions, ideas and other feedback to Podtrac regarding the use, operation and functionality of this Site or any Services (or any element thereof) (“Feedback”). Such Feedback may include information about operating results, known or suspected bugs, errors or compatibility problems and user-desired features and suggestions for improvement. If you elect to provide Feedback to Podtrac, you hereby assign to Podtrac all rights in the Feedback and agree that Podtrac shall have the right to use such Feedback and related information in any manner it deems appropriate, worldwide, without obtaining your (or any third party’s) consent. Podtrac is not under any obligation to use Feedback and/or to make any payments to you or to any third party in connection with, or to respond to, any Feedback.
By using the Site or Services, including any related software, content, and supported services offered by Podtrac, you agree that any such use is entirely at your own risk. THE SITE AND SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY FOR INFORMATION, DATA, SERVICES, UNINTERRUPTED ACCESS, OR PRODUCTS PROVIDED THROUGH OR IN CONNECTION WITH THE SITE OR SERVICES. SPECIFICALLY, PODTRAC DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO: (1) ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, USEFULNESS, OR CONTENT OF INFORMATION, PRODUCTS OR SERVICES AND (2) ANY WARRANTIES OF TITLE, WARRANTY OF NON-INFRINGEMENT, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. PODTRAC MAKES NO WARRANTY AND SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS, OR RELIABILITY OF ANY DATA, INFORMATION, RESULTS, OR OTHER CONTENT OBTAINED THROUGH THE SERVICES. THIS DISCLAIMER OF LIABILITY APPLIES TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORDS, AND ALSO APPLIES TO ANY CAUSE OF ACTION, WHETHER FOR BREACH OF CONTRACT, TORTUOUS BEHAVIOR, NEGLIGENCE, OR ANY OTHER CLAIM. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORM A BASIS FOR ENABLING PODTRAC TO OFFER THE SERVICES TO YOU. SOME JURISDICTIONS DO NOT ALLOW EXCLUSION OF CERTAIN WARRANTIES SO THIS DISCLAIMER MAY NOT APPLY TO YOU IN FULL.
Limitation of Liability
NEITHER PODTRAC NOR ANY OF ITS EMPLOYEES, AGENTS, SUCCESSORS, ASSIGNS, AFFILIATES, LICENSORS, WEBSITE PROVIDERS OR CONTENT OR SERVICE PROVIDERS SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE SITE OR SERVICES (OR YOUR USE OR MISUSE THEREOF) OR INABILITY TO GAIN ACCESS TO OR USE THE SITE OR SERVICE OR OUT OF ANY BREACH OF ANY WARRANTY. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN SUCH STATES, THE RESPECTIVE LIABILITY OF PODTRAC, ITS EMPLOYEES, AGENTS, SUCCESSORS, ASSIGNS, AFFILIATES, LICENSORS, WEBSITE PROVIDERS AND CONTENT OR SERVICE PROVIDERS IS LIMITED TO THE GREATEST EXTENT PERMITTED BY SUCH STATE LAW.
Podtrac reserves the right to change or modify the Site and/or Services, including but not limited to revising and/or deleting features or other content without prior notice.
Suspension and Termination
Unless otherwise terminated as set forth herein, this Agreement will remain in full force and effect while you use the Site or Services. You may terminate your Podtrac account and this Agreement at any time by contacting Podtrac to deactivate your account.
Podtrac may terminate or suspend your access to the Site or Services or terminate this Agreement at any time, for any reason or no reason and without any liability to you. Upon termination, all licenses to access and use the Services are terminated. However, all licenses granted hereunder prior to such termination in connection with any Measurement Data and Results, as well as provisions relating to disclaimers, limitations of liability, indemnification, ownership and arbitration, will survive such termination.
Podtrac will not be liable to you or to any third party for termination of this Agreement (whether by Podtrac or by you) or any termination or suspension of your use of the Services. Upon any termination or suspension, information in connection with your account may no longer be accessed by you.
You agree to defend, indemnify and hold harmless Podtrac and its affiliates from any and all claims, liabilities, costs and expenses, including reasonable attorneys’ fees, arising in any way from your use or misuse of the Site or Services or the placement or transmission of any message, information, software or other materials through the Services by you or users of your account or related to any violation of this Agreement by you or users of your account.
Copyright and Trademarks
All trademarks, logos, and service marks (“Marks”) displayed on the Site or via the Service are the property or Podtrac or its licensors. You are not permitted to use these Marks without Podtrac’s prior written consent or the consent of such third party who may own the Marks. As between you and Podtrac, Podtrac owns all right, title and interest in and to the Site and Services, including all content and/or information on this Site. Any unauthorized use of this Site or the Services may violate copyright and other laws of the United States, other countries, as well as applicable state laws, and may subject you to penalties.
Your privacy rights are important to Podtrac. Please take a moment to review Podrac’s privacy practices [insert link].
Links From and To This Website
The Site may contain links to third-party websites, services, and advertisements for third parties (collectively, “Third-Party Sites & Ads”). Such Third-Party Sites & Ads are not under the control of Podtrac and Podtrac is not responsible for any Third-Party Sites & Ads. Podtrac provides these links to Third-Party Sites & Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Sites & Ads. You use all Third-Party Sites & Ads at your own risk. When you access a Third-Party Site & Ad through the Site, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third-Party Sites & Ads.
In the event of any claim, count, demand, or cause of action arising between you and Podtrac arising under or related in any way to this Agreement, the Site, or the Services, (“Dispute”), you and Podtrac agree that the Dispute shall be exclusively and finally settled through binding arbitration by one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”).
You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this Agreement EXCEPT for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
This agreement to arbitrate is intended to be interpreted broadly, and includes Disputes between you and Podtrac that arose in the past or may arise in the present or future. As modified by this Agreement, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively “Rules and Procedures”).
You and Podtrac must abide by the following rules: (a) for any claim that could otherwise be brought in small claims court, the arbitration shall be conducted solely based on written submissions and, if the arbitrator deems it appropriate, a telephonic hearing; (b) if the claim exceeds what can be recovered in a small claims court, the arbitration shall be conducted solely based on written submissions or a telephonic hearing, unless the arbitrator deems a face-to-face hearing is appropriate, in which case one should be held at a location agreed to by you and Podtrac, and if the parties cannot agree on a location for the hearing, the arbitrator will determine a location for the proceedings which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances; (c) the arbitrator’s ruling is binding and not merely advisory; (d) ANY CLAIMS BROUGHT BY YOU OR PODTRAC MUST BE BROUGHT IN EACH PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (e) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, (f) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, Podtrac will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, (g) the arbitration will be confidential and the arbitrator shall honor claims of privilege and privacy recognized at law, and (h) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and costs.
Notwithstanding the foregoing, either you or Podtrac may bring an individual action in small claims court. Further, claims of infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Claims of infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall be exclusively brought in the state or federal courts located in Arlington County, Virginia.
With the exception of subparts (d) and (e) above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either subpart (d) or (e) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor Podtrac shall be entitled to arbitrate the Dispute. In the event this agreement to arbitrate is held unenforceable by a court, or in the event AAA refuses to arbitrate the Dispute, the Dispute shall be exclusively brought in the state or federal courts located in Alexandria, Virginia.
For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
This Agreement and the relationship between you and Podtrac shall be governed by the laws of the Commonwealth of Virginia without regard to its conflict of law provisions. You and Podtrac agree to submit to the personal and exclusive jurisdiction of the courts located within the Commonwealth of Virginia.
The failure of Podtrac to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement 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 this Agreement remain in full force and effect.
Updated May 17, 2016