Effective Date: August 7, 2020
Introduction. Welcome to Simplecast. We’ve tried to keep things as clear as possible, but if you have any questions, please email us at firstname.lastname@example.org or email@example.com. We’re here to help. Audios Ventures, Inc., d/b/a Simplecast (“Simplecast,” “we,” “us,” or “our”) is a podcast syndication and analytics platform (“Platform”) that offers groups or individuals a medium for publishing digital audio and digital content owned and/or created by them. Through our sublicensing and reseller relationship with AdsWizz Inc. ("AdsWizz"), you may also license the AdsWizz podcast monetization tools (the “Ad Platform”, the “AudioMax Platform” and/or “PodScribe”, as defined further below) and the “AdWave Marketplace” (as defined further below), (collectively, “AdsWizz Services") via Simplecast.
Definitions. Defined terms not included below are as defined in the applicable section of the Agreement.
Restrictions on Use. You may not access or use the Services in a way that violates this Agreement, any supplemental rules or guidelines we may post, the terms and conditions of other providers of services we make available through our Services, or any applicable local, state or federal laws and regulations. You may use the Services only for their intended purpose. We may, at our sole discretion, terminate your access to Simplecast and/or to any of the Services for any reason or for no reason at all, without prior notice, or any notice, including your failure to adhere to these restrictions.
Age and Geographic Restrictions. The Services may be accessed and used only by individuals 18 years of age or older, or by individuals 13 to 17 years of age with parental/guardian consent. By using the Services, you state that you are the person whose name and other information have been provided for the Account in use. We do not knowingly collect or solicit personal information from children under 13. If we learn we have collected personal information from a child under 13, we will delete that information. If you believe that a child under 13 may have provided us personal information, please contact us at firstname.lastname@example.org.
Parental/Guardian Consent. In cases where you have consented to and authorized a minor between the ages of 13 to 17 to use the Services, you are fully responsible for the online conduct of the minor, controlling the minor’s access to and use of the Services, the consequences of any misuse by the minor, and any problem caused by the use of the Services or by your child’s viewing any part of our Website.
Registration. By registering and providing Registration Data, you state that: (i) the information you are providing is accurate and complete; (ii) your use of the Services will not violate any applicable laws; and (iii) your Account is for your sole use. You may not authorize others to use your Account or your Simplecast Website. You are responsible for updating your Registration Data if any portion of it changes or is no longer accurate or complete. If we discover or have reason to suspect that your Registration Data is inaccurate or incomplete, we may suspend or terminate your Account and prohibit your use of the Services.
Communications with Users. You hereby consent to receive communications from Simplecast ("Communications") via electronic means (as described below). Communications may be necessary to service or maintain your Account or be required by law ("Required Communications"), or Communications may be for informational, promotional, or other reasons. Simplecast may provide electronic Communications to you via the email address associated with your Account, by push notification or similar technology, and/or by posting the Communications on the Services. If you have provided your telephone number or postal address in connection with your Account or as part of your Registration Data, we may send you Communications by telephone or by postal mail, though we are not obligated to use these methods to send Communications to you. You may change the contact information associated with your Account by visiting your account information page, or clicking the “Unsubscribe” link at the bottom of the email. For a period of 120 days from the date that Simplecast first provided a Required Communication to you via email, you may request a paper copy of such Required Communication by sending a request to Simplecast, 64 Bleecker Street, Suite 294, New York, NY 10012, Attention: Customer Service (the “Customer Service Address"). Simplecast may charge a reasonable fee for providing paper copies. You may, without payment of special fees, withdraw your consent to receive Required Communications via email by sending a notice to the Customer Service Address that identifies your full name, username and postal mailing address. However, if you withdraw such consent, Simplecast may terminate your right to use the Services, including, without limitation, by terminating your Account and/or your subscription services.
Free Trial Offer. To provide you with an opportunity to try our Services, we offer a 14-day free trial ("Free Trial"). The terms of the Free Trial are as follows, unless stated otherwise at the time you redeem the Free Trial:
Billing. When you Subscribe, you acknowledge, agree, and accept that:
Refunds. Simplecast reserves the right to deliver refunds at our sole discretion. When you Subscribe, you acknowledge, agree, and accept that:
Availability. Subject to the terms and conditions of this Agreement and our other policies and procedures, we will use commercially reasonable efforts to attempt to provide the Services on a 24 hours a day, 7 days a week basis. From time to time the Services may be inaccessible or inoperable for any reason including, but not limited to: (i) equipment or software malfunctions; (ii) periodic maintenance and update procedures, or repairs or replacements that we undertake from time to time; (iii) modifications made by you without our consent; or (iv) or causes beyond our reasonable control or that are not reasonably foreseeable including, but not limited to, interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures. We have no control over the availability of the Services on a continuous or uninterrupted basis, and we assume no liability to you or any other person with regard thereto.
Taxes. You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services, provided that we may, in our sole discretion, do any of the foregoing on your behalf or for us as we see fit. We do not believe that the payments due to these Terms of Service are chargeable to any value added tax or any other form of sales tax or duty or other similar tax, whether charged on a federal, state or local basis (collectively, “VAT"). However, if any VAT is applicable to any consideration payable to us, then such VAT will be added to our invoices and paid by you, and to the extent that you are unable to recover such VAT or deduct it as input tax, you will be entitled to deduct such VAT as a deduction against amounts paid.
Beta Services. Simplecast and/or AdsWizz may offer new Services or new features to existing Services in a pre-release version ("Beta Services"). Your use of any Beta Services is subject to the following terms and conditions: (i) Beta Services are pre-release versions and may not work properly; (ii) your use of the Beta Services may expose you to unusual risks of operational failures; (iii) Beta Services are provided “as-is,” “as available,” and “with all faults,” and we do not recommend using them in production or mission-critical environments; (iv) Simplecast and AdsWizz may modify, change, or discontinue any aspect of the Beta Services at any time; (v) commercially released versions of Beta Services may change substantially, and programs that use or run with Beta Services may not work with the commercially released versions or subsequent releases; (vi) Simplecast and/or AdsWizz may limit the availability of customer service support for Beta Services; (vii) you agree to provide prompt Feedback (as defined below) regarding your experience with Beta Services in a form reasonably requested by us, including information necessary to enable us to duplicate errors or problems you experience. We may use your feedback for any purpose with no obligation to you, as set forth below in the section titled “Feedback.” You hereby authorize us to publish and attribute to you any comments and/or feedback you provide regarding Beta Services, including, without limitation, in press materials and/or marketing collateral. Any intellectual property inherent in your feedback or arising from your use of Beta Services will be owned exclusively by Simplecast or AdsWizz; and (viii) all information regarding your use of Beta Services, including your experience with and opinions regarding the Beta Services, is confidential, and may not be disclosed to a third party or used for any purpose other than providing feedback to Simplecast and/or AdsWizz. To the fullest extent permitted by law, Simplecast and AdsWizz disclaim any and all warranties, statutory, express or implied, with respect to Beta Services including, but not limited to, any implied warranties of title, merchantability, fitness for a particular purpose and non-infringement.
Your Right to Close Your Account. You may close your Account at any time via your account settings. You also have the option of deleting a single Simplecast Podcast instead of closing your entire Account.
Our Right to Close your Account. We may close your Account, without prior notice, for any of the following reasons: (i) if you, whether intentionally or unintentionally, breach any provision of this Agreement, any supplemental rules and guidelines, and/or any terms and conditions of other providers of services we make available through the Services; (ii) if we receive notice that you or your company will be or is subject to insolvency proceedings; (iii) if we do not receive a written response from you within 48 hours of any notice sent to you by our Abuse Department; (iv) if we determine that your use of the Service has the potential to pose any harm to us, any of our affiliates, service providers, and/or customers; (v) if your Account becomes past due and is not paid within four weeks of becoming past due; (vi) if a hacked script or otherwise compromised website is discovered on our systems at the Service in use by you; (vii) if an unusual spike in resource usage is detected by our systems resulting in an Account far outstripping the allotted resources; (viii) if you fail to cure any suspension of your Account or any individual Service, to our satisfaction, and within our specified time frame; and/or (ix) if we have received repeated complaints about your Content. If we close your Account for any of the reasons stated above, you will not be eligible for a refund of any fees and you may be prohibited from reopening the Account, opening a new Account, or accessing any existing Account. We will not be liable, in any way, for closing your Account pursuant to this section of the Agreement.
Effects of Account or Service Closure. Upon any closure of your Account or an individual Service, whether by you or us:
Effects of Account or Service Suspension. Upon any suspension of your Account, all Services associated with the Account will be suspended or otherwise made inaccessible until and unless all issues of which we provide notice are addressed and resolved by you, to our satisfaction, and within our specified time frame. During any suspension of your Account or any individual Service, you will not be permitted to: (i) add, upgrade, downgrade or modify any of the Services; (ii) request an emergency restoration; (iii) transfer any Service, including, but not limited to, domain name registrations; and/or (iv) access any of the websites, email accounts or Content associated with the suspended Service or Account. You agree to hold us harmless from and against any and all claims, losses or damages arising from any suspension of your Account or an individual Service.
Inactivity. We may suspend or terminate any Account and/or any AdsWizz Product or Service on an Account if it is inactive for more than 90 days.
Your Content. All Content is the sole responsibility of the person or entity from which such Content originated. This means that you, and not Simplecast or AdsWizz, are entirely responsible for all Content that you upload, post, email, or otherwise disseminate or transmit via the Services. You represent, warrant and covenant that: (i) you have all of the rights, title, and interest in and to the Content that are necessary for your use of the Content in the Services and the manner in which you are using it; (ii) you will not use the Services in relation to any activity that would violate any law, rule or regulation, including, but not limited to, those relating to privacy or data protection; and (iii) the Content complies in all manners with the Prohibited Conduct policy set forth below.
Objectionable or Inaccurate Content. Neither Simplecast nor AdsWizz guarantees the accuracy, integrity, legality or quality of Content. The Content provided by users on or through the Services may contain inaccurate, inappropriate, incomplete, untruthful, offensive, indecent, or objectionable material for which Simplecast and AdsWizz assume no responsibility. You acknowledge and bear all risk associated with your use or consumption of any Content made accessible through the Services, including any reliance on the accuracy, completeness, or usefulness of such Content. Under no circumstances will Simplecast or AdsWizz be held liable for any Content, including, but not limited to, any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content.
Removal of Content. Neither Simplecast nor AdsWizz prescreens or reviews Content in the general course of business. Simplecast may, however, reject, refuse to post, remove, or block access to any Content, at any time and without notice, for any reason or no reason, and without liability. Additionally, we may notify you if we determine that any of your Content is inappropriate or does not comply with this Agreement, any posted policies, or applicable law.
Simplecast Does Not Advertise Simplecast or Third Parties in Your Content Without Your Express Consent. Unlike some other service providers,Simplecast does not place Simplecast advertisements into your Content, nor does it place the advertisements of the products or services of third-parties paying Simplecast. If you are not using AdsWizz Services, Simplecast does not add any advertisements to your Content without your advance express written permission and Simplecast does not take a revenue share of any advertising you include in your Content. If you have a license for the AdsWizz Services, the fees for utilizing those Services (including any applicable revenue share) and the specific terms governing the placement of advertisements in your Content are as set forth on your Sales Order.
Prohibited Conduct. In order to comply with our legal obligations and maintain a functional environment for Simplecast users, certain activities are prohibited. When using the Services YOU AGREE NOT TO:
Account Access. You must enter the email address and password you submitted during Account creation (or subsequently updated) ("Login Credentials") to log in to your Account. You must: (i) take all reasonable precautions to safeguard and maintain the confidentiality of your Login Credentials; (ii) not share your Login Credentials with anyone else; (iii) promptly report to us any unauthorized use of your Login Credentials or the Services of which you become aware; and (iv) ensure that you log out from your Account at the end of each session. If you disclose your Login Credentials, you are responsible for any use, disclosure, additions, deletions and modifications of your information.
Websites. When you register for our Services, you may designate a Site Link which will serve as your Simplecast Website address where you can publish your Content. You are solely responsible for all Content published, disseminated or otherwise displayed through your Simplecast Website and Account. We may limit or otherwise restrict the amount of bandwidth, disk space or storage space available to your Account and/or Simplecast Website. You are solely responsible for maintaining backups of any Content you publish to your Simplecast Website and/or store on your Account, and we strongly encourage you to do so.
Simplecast Audio Web Player. The Simplecast Audio Web Player (the “Simplecast Audio Web Player “) is made available to you free of charge subject to the terms of this Agreement. You agree not to attempt to, or assist another person to attempt to, circumvent, tamper with, modify, disassemble, decompile, reverse engineer, derive the source code of, or create derivative works from, the Simplecast Audio Web Player, and you may not copy, distribute, publicly display, or publicly perform the Simplecast Audio Web Player except as expressly authorized by this Agreement. You agree not to modify the Simplecast Audio Web Player in any manner or form, or to use modified versions of the Simplecast Audio Web Playerfor any purposes. You may not use the Simplecast Audio Web Playerto engage in or allow others to engage in any illegal activity. You may not claim any sponsorship by, endorsement by, or affiliation with Simplecast, in any way. As with the other Services, the Simplecast Audio Web Playeris subject to all of the terms of this Agreement. All such music files are subject to copyright and/or other intellectual property protections afforded to the owners of such works. Please be advised that the unauthorized reproduction, distribution, public display, public performance, or creation of derivative works from such works is strictly prohibited.
AdsWizz Podcast Monetization Products Available Via Simplecast. Simplecast customers on our Professional or Enterprise plans, may receive a license to use certain AdsWizz podcast monetization products and services by entering into a Sales Order directly with us. The fees for the AdsWizz products and services are as set forth in the Sales Order. Your use of the AdsWizz products and services is subject to the following additional terms:
The AdsWizz Products
Limited License to Your Content, Name, and Likeness. Neither Simplecast nor AdsWizz claim any ownership interest in any Content (including, without limitation, master recordings, artwork and photographs) posted by you on Simplecast and/or AdsWizz, and the copyright to all such Content will remain with its original owner. By posting Content on Simplecast and/or AdsWizz, you warrant and represent that you own the Content or otherwise have the right to grant the license set forth in this section, and that such Content does not violate the rights of any third party. You shall pay all royalties and fees owing to any copyright or other rights holder by reason of any Content you post on Simplecast and/or AdsWizz. You hereby grant Simplecast and/or AdsWizz, as applicable, a limited, non-exclusive, worldwide, royalty-free license to use, reproduce, modify (for example, resizing of photos and/or encoding of audio or video files), transmit, publicly display, publicly perform and distribute any Content posted by you on or through Simplecast and/or AdsWizz. The license will terminate at such time as you remove your Content from Simplecast and/or AdsWizz, as applicable. Additionally, you grant Simplecast and AdsWizz, as applicable, the right to use: (i) your name, likeness, voice, signature, logo, trademark and image (and the right to alter the foregoing), and (ii) the URL, links, and screenshots from the Content in any medium currently known or developed hereafter, including, without limitation, internet, and streaming, only for purposes of providing the Services to you. You also agree that we can use the foregoing in our advertising and promotional materials, including on our website.
Feedback Submissions to Simplecast or AdsWizz. Simplecast and AdsWizz are continually improving their respective Services and developing new features and functionalities. Any information you send to Simplecast or AdsWizz, including, but not limited to, ideas, remarks, suggestions, or prototypes (“Feedback”), will immediately become the exclusive property of Simplecast or AdsWizz, respectively, and each is entitled to use the Feedback without restriction or compensation to the person or party who provided the Feedback. You are not obligated to provide Feedback to us. Under no circumstances will any disclosure of Feedback to Simplecast or AdsWizz be subject to any obligation of confidentiality or expectation of compensation. By sending Feedback, you are waiving any and all rights that you may have in the Feedback and you are representing and warranting to Simplecast and AdsWizz that the Feedback is wholly original with you, that no one else has any rights to the Feedback, and that Simplecast and AdsWizz are free to use or implement the Feedback and any related materials, without obtaining any permission or license from you or any third party.
Linking to Simplecast; Use of Trademarks. Simplecast hereby grants to you during this Agreement a non-assignable, non-transferable, and non-exclusive license to link to the Simplecast Website, using Simplecast trademarks, subject to the following provisions. Simplecast trademarks may be placed on a Website for the sole purpose of creating a link to Simplecast and allowing users of your site to access the Services on Simplecast. Simplecast trademarks may not be used for any other purpose, including, among other purposes, to suggest sponsorship by, or affiliation with, or endorsement by Simplecast. Simplecast trademarks may only be used in accordance with the Simplecast’s instructions or written permission. Simplecast or AdsWizz trademarks may not be used to disparage Simplecast or AdsWizz, or their products or Services, or in a manner which, in our reasonable judgment, may diminish or otherwise damage our goodwill in the Simplecast or AdsWizz trademarks. You acknowledge that Simplecast and AdsWizz have exclusive rights to their respective trademarks, and that your use of the Simplecast or AdsWizz trademarks will inure to the benefit of Simplecast or AdsWizz, respectively. If you use Simplecast or AdsWizz trademarks, you must include appropriate attribution, for example: “Simplecast is a registered trademark of Audios Ventures Inc.” Simplecast and AdsWizz reserve the right to revoke this license or to alter its terms from time to time, for any or no reason. Simplecast and AdsWizz reserve the right to take action against any user that does not conform to these provisions. The ability to include links is provided only as a convenience, and the inclusion of any link by any Simplecast or AdsWizz user does not imply any affiliation, endorsement, or adoption by Simplecast or AdsWizz of the linked site or any of the information contained on the site.
Third Party Sales. Simplecast is not in a partnership, joint venture, employer-employee, or franchisor-franchisee relationship with any Merchant accessible through Simplecast and/or the Services, and we do not endorse nor are we able to control or enforce any Content such Merchant may display or otherwise make available via the Services. Further, we will not get involved with any dispute arising between users of the Services, including visitors to the Merchant’s Simplecast Website and the Merchants.
Intellectual Property of Simplecast, AdsWizz and Others. Except as expressly provided herein, nothing within any of the Services or this Agreement will be construed as conferring any license under any of Simplecast or AdsWizz or any third party’s intellectual property rights, whether by estoppel, implication, waiver, or otherwise. Without limiting the generality of the foregoing, you acknowledge and agree that certain Content available through and used to operate Simplecast and AdsWizz and the Services is protected by copyright, trademark, patent, or other proprietary rights of Simplecast and AdsWizz, respectively, and their affiliates, licensors (including, without limitation, artists), and service providers. Except as expressly provided otherwise, you shall not modify, alter, or deface any of the trademarks, service marks, or other intellectual property made available by Simplecast or AdsWizz in connection with the Services. You agree not to hold yourself out as in any way sponsored by, affiliated with, or endorsed by Simplecast or AdsWizz, any of Simplecast’s or AdsWizz’s affiliates, or any other providers whose services are made available through the Services. You agree not to use any of the trademarks or service marks or other Content accessible through Simplecast or AdsWizz for any purpose other than the purpose for which such Content is made available to users by Simplecast or AdsWizz.
Data Security and Data Usage. We implement appropriate technical and organizational measures to maintain the security of Your Data (defined below), and we have physical, electronic, and managerial procedures to help safeguard, and prevent unauthorized access to and use of Your Data. However, neither people nor security systems are foolproof, including encryption systems. Therefore, while we use reasonable efforts to protect your information, we cannot guarantee it will always be 100% secure. You are responsible for the security of your personal information and assessing our security protocols.
For the purposes of the Simplecast DPA and the Standard Contractual Clauses attached to the Simplecast DPA (when and as applicable), you (and your applicable affiliates) are considered the Data Controller/Data Exporter, and your acceptance of the Terms and Conditions of Use governing the Services at the time of purchase will also be treated as your acknowledgement and acceptance of the Simplecast DPA and its appendices (including the Standard Contractual Clauses and its appendices, as applicable). If you wish to print, sign and return a physical copy of the DPA, please send an email request to email@example.com.
For purposes of the AdsWizz DPA and the Standard Contractual Clauses attached to the AdsWizz DPA (when and as applicable), you (and your applicable affiliates) are considered the Data Controller/Data Exporter, and your acceptance of the terms of service governing the Services at the time of purchase will also be treated as your acknowledgement and acceptance of the AdsWizz DPA and its appendices (including the Standard Contractual Clauses and its appendices, as applicable). If you wish to print, sign and return a physical copy of the AdsWizz DPA, please send an email request to firstname.lastname@example.org.
Trademark Notice. All trademarks that appear throughout the Services belong to the respective owners of such marks, and are protected by U.S. and/or international trademark laws where they are registered. Any use of any of the marks appearing throughout the Services without the express written consent of Simplecast, AdsWizz, or the owner of the mark, as appropriate, is strictly prohibited.
Export Controls. Certain software, and related documentation or technical information available through Simplecast or AdsWizz is subject to applicable laws and regulations of the United States pertaining to export controls. By using such software or related documentation or technical information, you represent and warrant that you are not located in, or under the control of, or a national or resident of any embargoed country or any country on the U.S. Department of Commerce’s Table of Denial Orders. You agree not to export or re-export such software or related documentation or technical information directly or indirectly to any countries that are subject to United States export restrictions.
Violations of this Agreement. If you violate this Agreement, any supplemental rules and guidelines, any of the terms and conditions of the respective service providers, or any rights of Simplecast or AdsWizz, or their affiliates, business contractors, or service providers, we and any other harmed party reserve the right to pursue any and all legal and equitable remedies against you, including, without limitation, terminating any and all user Accounts on any and all of the Simplecast websites. If you are aware of any violations of this Agreement, please report them to: Simplecast Abuse Manager, 64 Bleecker Street, Suite 294, New York, NY 10012; email: email@example.com.
Disclaimers of Warranties. OTHER THAN AS EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED “AS IS”, WITH NO WARRANTIES WHATSOEVER. ALL IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS, ARE EXPRESSLY DISCLAIMED. SIMPLECAST AND ADSWIZZ DISCLAIM ANY WARRANTIES FOR THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE SERVICES. SIMPLECAST AND ADSWIZZ DISCLAIM ANY WARRANTIES FOR OTHER SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE SERVICES OR RECEIVED THROUGH ANY LINKS PROVIDED IN THE SERVICES, AS WELL AS FOR ANY INFORMATION OR ADVICE RECEIVED THROUGH THE SERVICES OR THROUGH ANY LINKS PROVIDED IN THE SERVICES. SIMPLECAST AND ADSWIZZ SIMILARLY DISCLAIM ANY WARRANTIES FOR ANY INFORMATION OR ADVICE OBTAINED THROUGH THE SERVICES. YOU EXPRESSLY UNDERSTAND AND AGREE THAT SIMPLECAST AND ADSWIZZ DISCLAIM ANY AND ALL RESPONSIBILITY OR LIABILITY FOR THE ACCURACY, CONTENT, COMPLETENESS, LEGALITY, RELIABILITY, OR OPERABILITY OR AVAILABILITY OF INFORMATION OR MATERIAL IN THE SERVICES. SIMPLECAST AND ADSWIZZ DISCLAIM ANY RESPONSIBILITY FOR THE DELETION, FAILURE TO STORE, MISDELIVERY, OR UNTIMELY DELIVERY OF ANY INFORMATION OR MATERIAL. SIMPLECAST AND ADSWIZZ DISCLAIM ANY RESPONSIBILITY OR LIABILITY FOR ANY HARM RESULTING FROM DOWNLOADING OR ACCESSING ANY INFORMATION OR MATERIAL THROUGH THE SERVICES, INCLUDING, WITHOUT LIMITATION, FOR HARM CAUSED BY VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. SIMPLECAST AND ADSWIZZ MAKE NO WARRANTY REGARDING THE RELIABILITY OR ACCESSIBILITY OF WEBSITE PAGES OR ANY STORAGE FACILITIES OFFERED BY SIMPLECAST OR ADSWIZZ. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS IN THE DOWNLOAD OF SUCH MATERIAL. ALL OF THE FOREGOING ARE TO THE FULLEST EXTENT PERMITTED BY LAW.
Limitation of Liability. YOU EXPRESSLY UNDERSTAND AND AGREE THAT UNDER NO CIRCUMSTANCES WILL SIMPLECAST AND/OR ADSWIZZ OR THEIR LICENSORS OR SERVICE PROVIDERS BE LIABLE TO ANY USER FOR (1) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, RELIANCE, EXEMPLARY, AND PUNITIVE DAMAGES INCLUDING LOST BUSINESS, REVENUE, OR PROFITS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES, OR (2) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID FOR THE SERVICES IN THE PRECEDING TWELVE MONTHS. THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY OR CAUSE OF ACTION AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE (EVEN IF SIMPLECAST, ADSWIZZ, AND/OR THEIR LICENSORS OR SERVICE PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). SUCH LIMITATION OF LIABILITY WILL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF AND RELIANCE ON THE SERVICES, FROM INABILITY TO USE THE SERVICES, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE SERVICES (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES). SUCH LIMITATION WILL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF OTHER SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE SERVICES OR RECEIVED THROUGH ANY LINKS PROVIDED IN THE SERVICES, AS WELL AS BY REASON OF ANY INFORMATION OR ADVICE RECEIVED THROUGH OR ADVERTISED ON THE SERVICES OR RECEIVED THROUGH ANY LINKS PROVIDED IN THE SERVICES. SUCH LIMITATION WILL APPLY, WITHOUT LIMITATION, TO THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, OR LOST DATA. SUCH LIMITATION WILL APPLY WITH RESPECT TO THE PERFORMANCE OR NON-PERFORMANCE OF THE SERVICES OR ANY INFORMATION OR MERCHANDISE THAT APPEARS ON, OR IS LINKED OR RELATED IN ANY WAY TO SIMPLECAST AND/OR ADSWIZZ. SUCH LIMITATION WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SUCH LIMITATION WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. SUCH LIMITATION OF LIABILITY WILL ALSO APPLY TO ANY DAMAGE CAUSED BY LOSS OF ACCESS TO, DELETION OF, FAILURE TO STORE, FAILURE TO BACK UP, OR ALTERATION OF WEBSITES OR OTHER CONTENT STORED THROUGHOUT SIMPLECAST AND/OR ADSWIZZ.
Limitations of Time to File Claims. Regardless of any statute or law to the contrary, any claim or cause of action you may have arising out of, or relating to, your use of Simplecast, AdsWizz, and/ or the Services must be filed within one (1) year after such claim or cause of action arises, or forever be barred.
Indemnification. By using the Services, you agree to indemnify, defend and hold harmless (at Simplecast’s and/or AdsWizz’s option) Simplecast and AdsWizz, and their parent and/or affiliated companies, as well as their respective officers, directors, employees, and licensors, and hold them harmless from and against any and all claims and expenses, including attorney’s fees, arising from Content transmitted via the Services, your use of the Services, or your submission of ideas and/or related materials to Simplecast and/or AdsWizz or from any person’s use of any account or password you maintain with Simplecast and/or AdsWizz, regardless of whether such use is authorized by you. By using Simplecast and/or AdsWizz, using the Services, and/or submitting any ideas and/or related materials to Simplecast, you hereby release Simplecast and AdsWizz, and their parents, subsidiaries, affiliates, officers, directors, employees, and licensors from any and all claims, demands, debts, obligations, damages (actual or consequential), costs, and expenses of any kind or nature whatsoever, whether known or unknown, suspected or unsuspected, disclosed or undisclosed, that you may have against them arising out of or in any way related to such disputes and/or to the Services or to any disputes regarding use of ideas and/or related materials submitted to Simplecast and/or AdsWizz. YOU HEREBY WAIVE ALL LAWS THAT MAY LIMIT THE EFFICACY OF SUCH RELEASES. FOR EXAMPLE, YOU SPECIFICALLY AGREE TO WAIVE THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH PROVIDES “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IS KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
Confidential Information. Each party will keep confidential all information and materials provided by the other party including all non-public information and know-how of the other party disclosed by any party hereunder in writing, orally, or by drawing or other form ("Confidential Information"). All such information disclosed by either party to the other, whether orally, in writing, by inspection or otherwise, will be deemed to be Confidential Information of the disclosing party unless otherwise expressly agreed in writing by the party disclosing such information, provided that such information is marked as “confidential” or bears a similar legend or is information that the receiving party knows, or reasonably should have known, is the Confidential Information of the disclosing party. Furthermore, the features and functionality of the Simplecast and/or AdsWizz Services, as well as any information regarding planned modifications or updates thereto or future products and services will also constitute Confidential Information of Simplecast and AdsWizz, respectively. Each party will keep and instruct its employees and agents to keep Confidential Information confidential by using at least the same care and discretion as used with that party’s own confidential information, but in no case less than a prudent and reasonable standard of care. Neither party will use Confidential Information other than for purposes of performing its obligations hereunder or as authorized by the disclosing party. Information or materials will not constitute Confidential Information if it is (i) in the public domain through no fault of the receiving party; (ii) known to the receiving party prior to the time of disclosure by the disclosing party; (iii) lawfully and rightfully disclosed to the receiving party by a third party on a non-confidential basis; or (iv) developed by the receiving party without reference to Confidential Information. Disclosure of Confidential Information will not be prohibited if such disclosure: (i) is in response to a valid order of a court ordering such disclosure; provided, however, that the party subject to the court order will first, to the extent legally permitted, have given at least fifteen (15) days, advance written notice to the other party; or (ii) is otherwise required by law. If any party, its employees, or its agents breach or threatens to breach the obligations of these Confidential Information terms, the affected party may seek injunctive relief from a court of competent jurisdiction without the posting of a bond, in addition to its other remedies, as the inadequacy of monetary damages and irreparable harm are acknowledged.
Mutual Representations, Warranties and Covenants. Each party represents, warrants, and covenants to the other party that: (i) it has the full power and authority to enter into this Agreement; (ii) the execution of this Agreement and performance of its obligations under this Agreement does not violate any other agreement to which it is a party; and (iii) this Agreement constitutes a legal, valid, and binding obligation when executed and delivered.
Construction. This Agreement will be fairly interpreted and construed in accordance with its terms and without strict interpretation or construction in favor of or against either party. Each party has had the opportunity to consult with counsel in the negotiation of this Agreement. Section headings are for reference purposes only, and should not be used for purposes of interpretation.
Severability. If any provision, or portion thereof, of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such determination will not impair or affect the validity, legality, or enforceability of the remaining provisions of this Agreement, and each provision, or portion thereof, is hereby declared to be separate, severable, and distinct.
Force Majeure. Except for payment obligations, Simplecast and/or AdsWizz will not be liable to you or any other person, firm or entity for any failure of performance under this Agreement if such failure is due to any cause or causes beyond the reasonable control of Simplecast, AdsWizz and/or their service providers, including, but not limited to, epidemics, pandemics, strikes, labor disputes, lockouts, or work stoppages, or other labor difficulties, shortages of labor or materials, riots, vandalism, civil disturbances, acts of terrorism, wars, third-party provider outages, cable cuts, power crisis shortages, internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, loss of or fluctuations in heat, light, or air conditioning, inclement weather, fires, floods, storms, explosions, and other uncontrollable acts of God or nature, or other similar occurrences; any law, order, regulation, direction, action or request of the United States or foreign government (including state and local governmental agency, department, commission, court, bureau, corporation or other instrumentality of any one or more of said governments) or of any civil or military authority, or national emergencies.
Compliance with local laws. Neither Simplecast nor AdsWizz makes any representation or warranty that the content available on the Services are appropriate in every country or jurisdiction, and access to the Services from countries or jurisdictions where its content is illegal is prohibited. Users who choose to access the Services are responsible for compliance with all local laws, rules and regulations.
United State’s Foreign Corrupt Practices Act: Each party will, and will ensure that its affiliates and any third party contractors will, comply with the United States Foreign Corrupt Practices Act (as amended), and any analogous laws or regulations existing in any other country or region, in connection with its performance under this Agreement. Neither party will make any payment, either directly or indirectly, of money or other assets, including, but not limited to, compensation derived from this Agreement, to government or political party officials, officials of international public organizations, candidates for public office, or representatives of other businesses or persons acting on behalf of any of the foregoing, that would constitute a violation of any law, rule or regulation.
Entire Agreement; Waiver. This Agreement constitutes the complete, final, exclusive and entire agreement between you and us with respect to the Services and supersedes all prior or contemporaneous understandings and agreements, whether written or oral, with respect thereto. Neither party is relying upon any warranties, representations, assurances or inducements not expressly set forth herein. You may be subject to additional third-party terms and policies based on your use of the Services. A waiver of any provision of this Agreement will only be valid if provided in writing and will only be applicable to the specific incident and occurrence so waived. The delay in exercising any right of Simplecast or AdsWizz, the failure to insist upon the strict performance of this Agreement, or the failure or partial failure to exercise any term hereof, will not act as a waiver of any right, promise or term, which will continue in full force and effect. Any single or partial exercise of any right or power hereunder does not preclude further exercise of that or any other right hereunder.
In the event of a conflict between this Agreement and any applicable Sales Order or other terms, this Agreement will govern. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect. The headings of sections and paragraphs in this Agreement are for convenience only and will not affect its interpretation.
Choice of Laws. This Agreement is governed by (and will be interpreted, construed and enforced in all respects under) the internal substantive laws of the State of California, without respect to its conflict of laws principles and without regard to regard to the actual state or country of incorporation or residence of the parties. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
Third Party Vendors. Some of the Services are offered and/or provided to you through third parties with which we contract.
Class Action Waiver. Any proceedings to resolve or litigate any dispute in any forum will be conducted solely on an individual basis. Neither you nor we will seek to have any dispute heard as a class action or in any other proceeding in which either party acts or proposes to act in a representative capacity, and each party hereby waives any right to assert consolidated claims with respect to any disputes subject to arbitration under this Agreement or any disputes between the parties. No proceeding will be combined with another without the prior written consent of all parties to all affected proceedings.
Relationship of the Parties. You, on the one hand, and Simplecast and AdsWizz, on the other hand, are independent contractors under this Agreement, and nothing in this Agreement will be construed to create a partnership, joint venture, agency, or employment relationship. Except as set forth herein relating to the AdsWizz Services, neither party pursuant to this Agreement has authority to enter into agreements of any kind on behalf of the other and neither party will be considered the agent of the other. Nothing herein contained will give, or is intended to give, any rights of any kind to any third parties.
Termination and Survival. This Agreement will remain in full force and effect for as long as your Account remains open, regardless of whether or not you are logging into the Account or using the Services, unless specifically terminated by Simplecast. Any and all provisions in this Agreement which impose obligations continuing in their nature will survive termination or otherwise continue to remain in full force and effect even after termination of this Agreement.
Digital Millennium Copyright Act (DMCA) Policy
(a) You may not use the Services in any manner that infringes upon any copyright. Such infringement may include, but is not limited to, selling counterfeit goods, unauthorized copying of photographs, books, music, videos, or any other copyright protected work. It is our policy to promptly investigate compliant notices of alleged copyright infringement that are provided to us in writing regarding content that may be located on or about simplecast.com and/or the Services. Our response to such notices may include removing or disabling access to the Content or website claimed to be the subject of infringing activity, without prior notice, and without regard to the complaint’s substance (or lack thereof). Simplecast reserves the right, in its sole discretion, to close any account for which Simplecast receives three or more copyright infringement complaints, without prior notice and without a refund of any fees.
(b) Any person or party who wishes to file a claim of copyright infringement regarding content hosted on or otherwise displayed via our Platform may file notice via either email or postal mail. Any person or party who requires assistance filing a claim of copyright infringement should consult a legal professional for assistance. NOTE: Any person who knowingly materially misrepresents that content is infringing, or that it was removed or blocked through mistake or misidentification, may be liable for any resulting damages (including, but not limited to, costs and attorney’s fees) incurred by the alleged infringer, the copyright holder or its licensee, or the service provider.
To email, send to firstname.lastname@example.org
To send via postal mail, send to:
Simplecast ℅ Audios Ventures, Inc.
Attention: DMCA Compliance Officer
64 Bleecker Street
New York, NY 10012
(c) The DMCA requires very specific language be present in any notice of alleged copyright infringement. As set forth in the DMCA, in order to be effective, a notice of copyright infringement must include all of the following:
Government Entity Addendum
This addendum ("Addendum") applies only to U.S. Government users of the Services. U.S. Government users of the Services will not have access to the products and services offered by AdsWizz, Inc. via Simplecast.
You, as a U.S. Government entity ("Agency"), are required when entering into agreements with other parties to follow applicable federal laws and regulations, including those related to ethics; privacy and security; accessibility; federal records; limitations on indemnification; fiscal law constraints; advertising and endorsements; freedom of information; and governing law and dispute resolution forum. Audios Ventures, Inc., d/b/a Simplecast ( “Company") and Agency (together, the “Parties") agree to modify the Company’s standard General Terms and Conditions of Use Agreement, available at https://simplecast.com/terms (the “Agreement") to accommodate Agency’s legal status, its public (in contrast to private) mission, and other special circumstances. Accordingly, the Agreement is hereby modified by this Amendment as they pertain to Agency’s use of the Platform and Services.