Effective Date: January 15, 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 mailto:firstname.lastname@example.org or mailto:email@example.com. We’re here to help. Audios Ventures, Inc., d/b/a Simplecast (“Simplecast”) 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.
Definitions. The following are certain definitions used in this Agreement:
Restrictions on Use. You must use the Services, however, in a way that does not violate this Agreement, any supplemental rules and guidelines we may post, the terms and conditions of the respective service partners, or any applicable local, state or federal laws and regulations. The Services may only be used for the intended purpose for which such Services are being made available. You acknowledge and agree that 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.
Registration and Privacy. Certain Services will require you to register and provide certain data as required by certain Simplecast registration forms. In registering and providing the Registration Data, you represent that: (a) the information you are providing about yourself is true, accurate, current and complete, (b) you will maintain and promptly update the Registration Data to keep it true, accurate, current and complete, (c) you are 13 years of age or older, (d) your use of the Services will not violate any applicable laws and (e) your membership is for your sole use and you will not authorize others to use your Simplecast Account nor your Simplecast Website. If we discover or have reason to suspect that you have provided us untrue, inaccurate, not current or incomplete Registration data, we reserve the right to suspend or terminate your Simplecast Account and refuse any and all current or future use of the Services.
Communications with Users. You hereby consent to receive electronic communications (email) from Simplecast concerning your use of the Services and/or Simplecast product and service offerings (collectively, “Communications”). The Communications may be those that Simplecast is required to send to you by law concerning the Services (“Required Communications”). The Communications may also be those that Simplecast sends to you for other reasons. Simplecast may provide these Communications to you by sending an email to the email address you provided in connection with your Simplecast Account and/or by posting the Communications on Simplecast. You also consent to receive Communications by telephone or by postal mail sent to the postal address you provided in connection with your Simplecast Account, though we are not obligated to use these methods to send Communications to you. You may change the email or postal address on file for your Simplecast Account by visiting your account information page. 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 at 24 Fourth Street, Suite 1007, Troy, NY 12180, Attention: Customer Service (the “Customer Service Address”). Simplecast may charge a fee, determined at its sole discretion, 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, user name and postal mailing address. However, if you withdraw such consent, understand that Simplecast reserves the right to terminate your right to use the Services, including, without limitation, by terminating your Simplecast Account and/or any subscription services that you may have.
Free Trial Offer. To provide you with an opportunity to try our Services, we offer a 14-day free trial (the “Free Trial”). The terms of the Free Trial are as follows:
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 shall use commercially reasonable efforts to attempt to provide this Site and the Services on a twenty-four (24) hours a day, seven (7) days a week basis. You acknowledge and agree that from time to time this Site may be inaccessible or inoperable for any reason including, but not limited to, equipment malfunctions; periodic maintenance, repairs or replacements that we undertake from time to time; 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. You acknowledge and agree that we have no control over the availability of this Site or the Service on a continuous or uninterrupted basis, and that we assume no liability to you or any other party 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. The parties believe that the payments due to these Terms of Service are not 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, it shall be entitled to deduct such VAT as a deduction amounts paid.
Termination. You may terminate your Simplecast Account at any time by logging into your Simplecast Account. Please note all of the following:
Monitoring of your Content. Simplecast generally does not pre-screen User Content (whether uploaded audio, posted to a website hosted by Simplecast or posted to this Site). However, Simplecast reserves the right (but undertakes no duty) to do so and decide whether any item of User Content is appropriate and/or complies with this Agreement. Simplecast may remove any item of User Content (whether posted to a website hosted by Simplecast or posted to this Site) and/or terminate a User’s access to this Site or the Services found at this Site for posting or publishing any material in violation of this Agreement, or for otherwise violating this Agreement (as determined by Simplecast in its sole and absolute discretion), at any time and without prior notice. Simplecast may also terminate a User’s access to this Site or the Services found at this Site if Simplecast has reason to believe the User is a repeat offender. If Simplecast terminates your access to this Site or the Services found at this Site, Simplecast may, in its sole and absolute discretion, remove and destroy any data and files stored by you on its servers.
Beta Services. From time to time, Simplecast may offer new Services (limited preview services or new features to existing Services) in a pre-release version. New Services, new features to existing Services or limited preview services shall be known, individually and collectively, as “Beta Services”. If you elect to use any Beta Services, then your use of the Beta Services is subject to the following terms and conditions: (i) You acknowledge and agree that the Beta Services are pre-release versions and may not work properly; (ii) You acknowledge and agree that your use of the Beta Services may expose you to unusual risks of operational failures; (iii) The Beta Services are provided as-is, so we do not recommend using them in production or mission critical environments; (iv) Simplecast reserves the right to modify, change, or discontinue any aspect of the Beta Services at any time; (v) Commercially released versions of the Beta Services may change substantially, and programs that use or run with the Beta Services may not work with the commercially released versions or subsequent releases; (vi) Simplecast may limit availability of customer service support time dedicated to support of the Beta Services; (vii) You acknowledge and agree to provide prompt feedback regarding your experience with the Beta Services in a form reasonably requested by us, including information necessary to enable us to duplicate errors or problems you experience. You acknowledge and agree that we may use your feedback for any purpose, including product development purposes. At our request you will provide us with comments that we may use publicly for press materials and marketing collateral. Any intellectual property inherent in your feedback or arising from your use of the Beta Services shall be owned exclusively by Simplecast; (viii) You acknowledge and agree that all information regarding your use of the 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; (ix) The Beta Services are provided “as is”, “as available”, and “with all faults”. To the fullest extent permitted by law, Simplecast disclaims any and all warranties, statutory, express or implied, with respect to the Beta Services including, but not limited to, any implied warranties of title, merchantability, fitness for a particular purpose and non-infringement.
Our Right to Close your Account; Deletion of Data.
Inactivity. At our discretion, we may suspend or terminate any Simplecast Account and/or any Product or Service on a Simplecast Account because of User Inactivity. At our discretion, we may also delete materials stored for any period of User Inactivity. “User Inactivity” varies and is solely determined by Simplecast. If your account is suspended or terminated by us for user inactivity, your ability to use the Simplecast Account and/or the Services immediately ceases.
User Content. You acknowledge and agree that all information, code, data, text, software, music, sound, photographs, pictures, graphics, video, chat, messages, files, products and/or any other materials (“Content”), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content originated. This means that you, and not Simplecast, are entirely responsible for all Content that you upload, post, email or otherwise transmit via the Services. Simplecast does not control the user or third party Content posted via the Services, and, as such, does not guarantee the accuracy, integrity, legality or quality of such user or third party Content. You acknowledge and agree that by using the Services, you may be exposed to Content that may be deemed offensive, indecent or objectionable. Under no circumstances shall Simplecast be held liable for any user or third party Content, including, but not limited to, any errors or omissions in any such Content, or for any loss or damage of any kind incurred as a result of the use of any such Content posted, emailed or otherwise transmitted via the Services. As a general matter, Simplecast does not pre-screen user or third party Content posted on or otherwise through our Platform, although we reserve the right, without obligation, to do so and to edit any Content that violates our guidelines, add images, our brands, or revise to ensure compliance with our guidelines.
Content Moderation. At our discretion, without having any obligation to do so, we may reject, refuse to post, remove, or block access to any Content or materials made available through the Services, at any time, for any reason or no reason, with or without notice, and without liability.
You agree to and do hereby grant to us 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 Content, including, without limitation, in any medium currently known or developed hereafter, including, without limitation, internet, streaming, and in-store television, 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.
Simplecast Does Not Add Content to Your Content. Unlike some other service providers, Simplecast does not place its own advertisements or those of third parties into your Content for Simplecast’s benefit. Simplecast does not take a revenue share of any advertising you include in your Content. Simplecast does not add any content to your Content without your express, written permission.
Content Provided by Users. Simplecast does not prescreen nor endorse any Content made available through the Services. The Content provided by users on or through the Services may contain inaccurate, inappropriate, incomplete, untruthful or offensive material and/or products or services for which Simplecast assumes no responsibility or liability. You acknowledge and bear all risk associated with the use of any Content made accessible through the Services, including any reliance on the accuracy, completeness, or usefulness of such Content.
Prohibited Conduct. In the interest of maintaining a functional environment for Simplecast users, certain activities are prohibited. The following represents a PARTIAL listing of the activities that are prohibited when using any of the Services. The prohibited activities include, but is not limited to this partial listing. When using the Services YOU AGREE NOT TO:
Account Access. To log in to your Simplecast Account, you will need to provide the email address and password (“login credentials”) for your Simplecast Account. You agree to (i) provide truthful and accurate registration information as requested by us; (ii) promptly inform us of any changes to your registration information, including, but not limited to, your address and email address; (iii) take all reasonable precautions to safeguard access to your password and to prevent unauthorized access to or use of the Services; (iv) promptly report to us any unauthorized use of your login information or the Services of which you become aware; and, (v) ensure that you log out from your account at the end of each session. You are responsible for keeping your account login credentials (user name and password) confidential and not sharing them with unauthorized users. If you disclose your login credentials to someone, you are responsible for any use, disclosure, additions, deletions and modifications of your information
Data Security. We take reasonable precautions to protect the security of your information. We have physical, electronic, and managerial procedures to help safeguard, prevent unauthorized access, maintain data security, and correctly use your information. However, neither people nor security systems are foolproof, including encryption systems. In addition, people can commit intentional crimes, make mistakes, or fail to follow policies. Therefore, while we use reasonable efforts to protect your information, we cannot guarantee its security. You are responsible for the security of your personal information. You should avoid transmitting personal or sensitive information, such as social security numbers, bank or credit card information.
You understand and agree that we may disclose your information to if required to do so by law, court order, legal process, or subpoena, including to respond to any government or regulatory request, or if we believe that such action is necessary to (a) conform to the law, comply with legal process served on us or our affiliates or partners, or investigate, prevent, or take action regarding suspected or actual illegal activities; (b) to enforce our Master Terms (including for billing and collection purposes), take precautions against liability, to investigate and defend ourselves against any third-party claims or allegations, to assist government enforcement agencies, or to protect the security or integrity of our site; and (c) to exercise or protect the rights, property, or personal safety of our company, our users or others.
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 Simplecast Account. At our sole discretion, we may limit or otherwise restrict the amount of bandwidth, disk space or storage space available to your Simplecast Account and/or Simplecast Website. We strongly encourage you to, and you are solely responsible for, maintaining backups of any Content you publish to your Simplecast Website and/or store on your Simplecast Account.
Protection of your data.
For the purposes of the DPA and the Standard Contractual Clauses attached to the 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 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 mailto:firstname.lastname@example.org
Simplecast Player Software. The Simplecast Audio Player and any software contained therein (collectively, the “Simplecast Player Software”) are made available to you free of charge subject to the terms of this Agreement. You may load the Simplecast Player Software into the temporary storage of your computer each time you use it for the sole purpose of engaging in that use, provided that you do so in accordance with this Agreement, and such use does not violate Simplecast’s intellectual property rights. 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 Player Software, and you may not copy, distribute, publicly display, or publicly perform the Simplecast Player Software except as expressly authorized by this Agreement. You agree not to modify the Simplecast Player Software in any manner or form, or to use modified versions of the Simplecast Player Software, for any purposes. You may not use the Simplecast Player Software to 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 Player Software is subject to all of the terms of this Agreement. Simplecast makes available through Simplecast certain music files solely for your personal use. 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.
Third Party Sales. Simplecast is not in partnership, in any 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.
Links. The ability to include links is provided only as a convenience, and the inclusion of any link by any Simplecast user does not imply any affiliation, endorsement, or adoption by Simplecast of the linked site or any of the information contained at the site.
Limited License to Content Posted on Simplecast. Simplecast claims no ownership interest in any of the Content (including, without limitation, master recordings, artwork and photographs) posted by you on Simplecast, and the copyright to all such Content shall remain with its original owner. By posting Content on Simplecast, you warrant and represent that you own the Content posted by you 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 agree to pay all royalties and fees owing to any copyright or other rights holder by reason of any Content you post on Simplecast. You agree to and do hereby grant Simplecast a limited, non-exclusive, worldwide, royalty-free license to use, reproduce, modify (for example, re-sizing 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. The license shall terminate at such time as you remove your Content from Simplecast.
Submissions to Simplecast. We are always improving Simplecast and developing new features. Any information you send to Simplecast, including but not limited to ideas, remarks, suggestions, or prototypes (“Feedback”), shall immediately become the exclusive property of Simplecast, and we are entitled to use the Feedback without restriction or compensation to the person or party who sent us the Feedback. Under no circumstances shall any disclosure of Feedback to Simplecast be subject to any obligation of confidentiality or expectation of compensation. By sending us Feedback, you are waiving any and all rights that you may have in the Feedback and you are representing and warranting to Simplecast that the Feedback is wholly original with you, that no one else has any rights to the Feedback and that Simplecast is free to use or implement the Feedback and to use any related materials if and as it so desires, without obtaining any permission or license from 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 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 Trademark Usage Guidelines. Simplecast trademarks may not be used to disparage Simplecast, its products or services, or in a manner which, in our reasonable judgment, may diminish or otherwise damage our goodwill in Simplecast trademarks. By using any such Simplecast trademarks, you acknowledge that Simplecast has exclusive rights to the Simplecast trademarks, and that all your use of the Simplecast trademarks will inure to the benefit of Simplecast. If you use Simplecast trademarks, you must include appropriate attribution, for example: “Simplecast is a registered trademark of Simplecast.” Simplecast reserves the right to revoke this license or to alter its terms from time to time, for any or no reason, with or without notice. Simplecast reserves the right to take action against any user that does not conform to these provisions.
Intellectual Property of Simplecast and Others. Except as expressly provided herein, nothing within any of the Services or this Agreement shall be construed as conferring any license under any of Simplecast 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 the Services is protected by copyright, trademark, patent, or other proprietary rights of Simplecast and its affiliates, licensors (including, without limitation, artists), and service providers. Except as expressly provided to the contrary, you agree not to modify, alter, or deface any of the trademarks, service marks, or other intellectual property made available by Simplecast in connection with the Services. You agree not to hold yourself out as in any way sponsored by, affiliated with, or endorsed by Simplecast, any of Simplecast’s affiliates, or any of Simplecast’s service providers. You agree not to use any of the trademarks or service marks or other Content accessible through Simplecast for any purpose other than the purpose for which such Content is made available to users by Simplecast.
(a) You may not use the Service 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 mailto:email@example.com
To send via postal mail, send to:
Simplecast ℅ Audios Ventures, Inc.
Attention: DMCA Compliance Officer
24 Fourth Street, Suite 1007
Troy, NY 12180
(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:
Copyright, Trademark, and Patent Notice. All trademarks that appear throughout the Services belong to Simplecast, the content owners featured on Simplecast, or the respective owners of such marks, and are protected by U.S. and international copyright, patent, and trademark laws. Any use of any of the marks appearing throughout the Services without the express written consent of Simplecast or the owner of the mark, as appropriate, is strictly prohibited.
Export Controls. Certain software, and related documentation or technical information available through Simplecast 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, its 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, ℅ Audios Ventures Inc., 24 Fourth Street, Suite 1007, Troy, NY 12180; E-mail: mailto:firstname.lastname@example.org.
Disclaimers of Warranties. OTHER THAN 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 DISCLAIMS ANY WARRANTIES FOR THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE SERVICES. SIMPLECAST DISCLAIMS 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 SIMILARLY DISCLAIMS ANY WARRANTIES FOR ANY INFORMATION OR ADVICE OBTAINED THROUGH THE SERVICES. YOU EXPRESSLY UNDERSTAND AND AGREE THAT SIMPLECAST DISCLAIMS 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 DISCLAIMS ANY RESPONSIBILITY FOR THE DELETION, FAILURE TO STORE, MISDELIVERY, OR UNTIMELY DELIVERY OF ANY INFORMATION OR MATERIAL. SIMPLECAST DISCLAIMS 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 MAKES NO WARRANTY REGARDING THE RELIABILITY OR ACCESSIBILITY OF MEMBER WEBSITE PAGES OR ANY STORAGE FACILITIES OFFERED BY SIMPLECAST. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT 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 SHALL SIMPLECAST OR ITS LICENSORS OR SERVICE PROVIDERS BE LIABLE TO ANY USER FOR (1) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, AND PUNITIVE DAMAGES BASED ON USER’S USE OR MISUSE OF AND/OR RELIANCE ON THE SERVICES, 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 OR ITS LICENSORS OR SERVICE PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). SUCH LIMITATION OF LIABILITY SHALL 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 SHALL 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 SHALL APPLY, WITHOUT LIMITATION, TO THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, OR LOST DATA. SUCH LIMITATION SHALL 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. SUCH LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SUCH LIMITATION SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. SUCH LIMITATION OF LIABILITY SHALL 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.
Limitations of Time to File Claims. You acknowledge and agree that, 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 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 option) Simplecast, and their officers, employees, and licensors, and hold them harmless from and against any and all claims and expenses, including attorney’s fees, arising from User Content transmitted via the Services, your use of the Services, or your submission of ideas and/or related materials to Simplecast or from any person’s use of any account or password you maintain with Simplecast, regardless of whether such use is authorized by you. By using Simplecast, using the Services, or submitting any ideas and/or related materials to Simplecast, you are hereby agreeing to release Simplecast and its parents, subsidiaries, affiliates, officers, 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. YOU HEREBY AGREE TO 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.”
Dispute Resolution. In the event of any dispute, claim, question or disagreement arising from or relating to this Agreement, or the relationship that results from this Agreement, other than claims for injunctive or other equitable relief (a “Dispute”), the parties hereto shall use their best efforts to settle the Dispute. To this effect, the parties shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties. If the parties do not reach such solution within a period of thirty (30) days, then the Dispute shall be resolved by binding arbitration in Los Angeles, California, in accordance with the Commercial Arbitration Rules of the American Arbitration Association (the “AAA”), subject to the limitations of this section. This agreement to arbitrate will be specifically enforceable under the prevailing law of any court having jurisdiction. Notice of a demand for arbitration shall be filed in writing with the other party hereto and with the AAA. The demand for arbitration shall be made within the time provided in the section “Limitation of Time to File Claims,” and in no event shall any such demand be made after the date when institution of legal or equitable proceedings based on such Dispute would be barred by the applicable statute of limitations. The parties agree that one (1) arbitrator shall arbitrate the Dispute. The arbitrator shall be selected by the joint agreement of the parties, but if they do not so agree within twenty (20) days after the date of the notice of a demand for arbitration referred to above, the selection shall be made pursuant to the Commercial Arbitration Rules of the AAA from the panels of business arbitrators maintained by the AAA. The decision of the arbitrator shall be made in writing, shall be final, judgment may be entered upon it in any court having jurisdiction thereof, and the decision shall not be subject to vacation, modification or appeal, except to the extent permitted by sections 10 and 11 of the Federal Arbitration Act, the terms of which sections the parties agree shall apply. The expenses of arbitration, including reasonable attorneys’ fees and the fees and expenses of the arbitrator, shall be shared equally by the parties.
IF YOU DO NOT WISH TO BE BOUND BY THE ARBITRATION PROVISION, YOU MUST NOTIFY SIMPLECAST BY EMAILING LEGAL@SIMPLECAST.COM WITHIN 30 DAYS OF THE DATE THAT YOU ACCEPT THESE TERMS (UNLESS A LONGER PERIOD IS REQUIRED BY APPLICABLE LAW). In the email, you must provide your (a) first name, (b) last name (c) address, (d) phone number, and (e) account number(s) and state the following: “I wish to opt out of the arbitration provision contained in Simplecast’s General Terms and Conditions of Use Agreement.” By providing your information in the method above, you are opting out of the agreement to arbitrate contained in Simplecast’s General Terms and Conditions of Use Agreement. Your opt-out request will only be valid if made within thirty (30) days of first accepting the General Terms and Conditions of Use Agreement. In the event that you opt-out consistent with the procedure set forth above, all other terms shall contained herein shall continue to apply, including those related to the applicable governing law and the court(s) in which legal disputes may be brought.
Force Majeure. Simplecast shall 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 by Simplecast or its service providers, including, but not limited to, 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. Simplecast makes no representation or warranty that the content available on this Site or the Services found at this Site are appropriate in every country or jurisdiction, and access to this Site or the Services found at this Site from countries or jurisdictions where its content is illegal is prohibited. Users who choose to access this Site or the Services found at this Site are responsible for compliance with all local laws, rules and regulations.
Entire Agreement. This Agreement constitutes the entire agreement between you and us with respect to the Services and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect thereto. You may be subject to additional third-party terms and policies based on your use of the Services. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, this Agreement shall 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 shall not affect its interpretation.
Changes to This Agreement. We may revise and update this Agreement from time to time in our sole discretion. All changes are effective immediately when we post them, and apply to all access to and use of the Services and our Platform thereafter.
Choice of Laws. This Agreement is governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. 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 arbitration or proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings.
Relationship of the Parties. You acknowledge and agree that you and Simplecast are independent contractors under this Agreement, and nothing in this Agreement shall be construed to create a partnership, joint venture, agency, or employment relationship. Neither party pursuant to this Agreement has authority to enter into agreements of any kind on behalf of the other and neither party shall be considered the agent of the other.
Termination and Survival. This Agreement shall remain in full force and effect for as long as your Simplecast account remains open, regardless of whether or not you are logging into the Simplecast account or using the Services, unless specifically terminated by Simplecast. Any and all provisions in this Agreement which impose obligations continuing in their nature shall survive termination or otherwise continue to remain in full force and effect even after termination of this Agreement.
This addendum (“Addendum”) applies only to U.S. Government users of the Site and Services.
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-conditions (the “Agreement”) to accommodate Agency’s legal status, its public (in contrast to private) mission, and other special circumstances. Accordingly, the Agreement are hereby modified by this Amendment as they pertain to Agency’s use of the Platform and Services.