Terms and Conditions of Service

PodUp Inc. (“PodUp”) helps entrepreneurs create, grow and monetize their businesses with online shows, podcasts and websites. It streamlines creation, production, hosting, distribution, marketing, monetization and management solutions through a software-as-a-service (“SAAS”) platform. Our platforms (collectively, the “Service”) are designed to help you manage the end-to-end process of creating a show. The Service is made available online through our websites, including, but not limited to PodUp.com. These Terms and Conditions of Service apply when you interact with our websites, products and services, and any other site or service that links or incorporates these Terms and Conditions of Service.

Modifications to This Agreement

From time to time, PodUp may modify this Agreement. Unless otherwise specified by PodUp modifications become effective when you access any of our websites or services, including, but not limited to, the Service, for the first time following the modification or enter into a new Order, whichever occurs first. PodUp will use reasonable efforts to notify you of any changes through communications via posting the modification online, through your account, email or other means. You may be required to click to accept or otherwise agree to the modified agreement before continuing use of the Service or entering into a new Order. In any event continued use of the Service after the updated version of this Agreement goes into effect will constitute your acceptance of such updated version.

USE OF ANY SERVICE OR PLACING AN ORDER WITH PODUP INDICATES YOUR ACCEPTANCE OF THIS AGREEMENT, AND YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, DO NOT USE ANY SERVICE OR PLACE ANY ORDER. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT. THIS AGREEMENT CONTAINS MANDATORY ARBITRATION PROVISIONS THAT REQUIRE THE USE OF ARBITRATION TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS.

Permitted Use of Service

During the Subscription Term, you may access and use the Service only for your internal business or personal purposes, in accordance with the subscription service selected by you.

Users

In order to utilize PodUp’s Service, you must become a user. PodUp has different types of users depending on the products used:

• Site Visitors
• Trial Users
• Subscribers

We refer to all types of users collectively as “Users” or “you”. Only Users may access or use the Service. By becoming a User, you agree to keep your login credentials confidential, take commercially reasonable steps to protect them, and not share them with anyone else. You further agree to promptly notify PodUp if you become aware of any compromise of login credentials or any error, omission, deficiency or defect located or discovered on the PodUp platforms.

Subscribers

In order to become a Subscriber, you must submit an “Order.” An Order is any PodUp provided ordering document, subscription purchase, subscription registration, online registration, order description or order confirmation for sales transactions of PodUp Service(s), or any other order or agreement entered into that referencing this Agreement.

Subscription Term

Unless otherwise specified in the applicable Order, PodUp offers month-to-month Subscription Terms. Monthly Subscription Terms will automatically renew for successive monthly periods, unless either party gives the other party written notice of non-renewal at least 15 calendar days before the end of the current Subscription Term. Upon notice of non-renewal, you will not be charged for the next billing cycle but will not receive any refunds or credits for amounts that have already been charged.

Fees and Taxes

Fees are as advertised or described at the time of each Order. You agree that PodUp may bill your credit card or other payment method for renewals and any unpaid fees, as applicable, on a monthly basis. You may change your payment method information by entering updated information through PodUp’s user interface. Unless the Order provides otherwise, all fees and expenses are due at the time of the Order or at the time of Subscription Term renewal. Fees for renewal Subscription Terms are at PodUp’s then current rates, regardless of any discounted pricing in a prior Order. Late payments are subject to a service charge of 1.5% per month or the maximum amount allowed by law, whichever is less. All fees and expenses are non-refundable except as set out in Warranty Remedy or Mitigation and Exceptions. You are responsible for any sales, use, goods and service, value-added, withholding or similar taxes or levies that apply to its Orders, whether domestic or foreign (“Taxes”), other than PodUp‘s income tax. Fees and expenses are exclusive of Taxes.

Expedited Fees

PodUp strives to ensure prompt and timely service. It is anticipated that it may take our ShowAgency service three weeks or longer to produce each episode of your show on your behalf. However, it is acknowledged that at times a need may arise to expedite production for a number of different reasons. As such, should you request expedited production of any episode of your show, PodUp reserves the right to decline any production. However, should PodUp agree to expedite production of any episode, PodUp reserves the right to charge an expedited fee of no less than two hundred dollars ($200.00). 

Age Requirement

The Service is not intended for, and may not be used by, anyone under the age of 18. By using the Service, you affirmatively assert that you are over 18 years of age and 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 support@PodUP.com.

Restrictions

You agree and covenant not to do any of the following (or allow or assist another to): copy, duplicate, infringe, scrape, data mine, reverse engineer, decompile, disassemble or seek to access the source code or non-public APIs or unauthorized data from the Service or PodUp’s intellectual property rights; share, provide access to, distribute, sell or sublicense the Service; use the Service on behalf of third parties; use the Service to develop or compete against PodUp; publish proprietary information, benchmarks or performance information about the Service; interfere with the Service’s operation, transmit any virus, circumvent access restrictions or conduct any security or vulnerability test of the Service without PodUp’s express written permission; use the Service for any pornographic, lewd or illegal activity; engage in any fraudulent, misleading or unethical activities related to the Service; allow multiple Users to share account access.

Trademarks

A trademark is a word, logo, phrase, or device that distinguishes a trademark holder’s good or service in the marketplace. Trademark law may prevent others from using a trademark in an unauthorized or confusing manner. All trademarks that appear throughout the Service 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 Service without the express written consent of PodUpor the owner of the mark, as appropriate, is strictly prohibited. Furthermore, you may not violate others’ intellectual property rights, including copyright and trademark, including, but not limited to using another’s trademark in a way that may mislead or confuse people about your affiliation, or in any other prohibited means. If you believe that your trademark is being misused by PodUp or one of its users, please notify us at support@PodUp.com and will take reasonable actions as appropriate under the circumstances.

Security

PodUp implements appropriate technical and organizational measures to maintain the security of data, and we have physical, electronic, and managerial procedures to help safeguard, and prevent unauthorized access to and use of 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.

Right to Use

You grant PodUp the right to use, copy, store, aggregate, reproduce, distribute, transmit and display your data and/or content, and to modify and create derivative works therefrom (i.e., for reformatting or other technical purposes), as necessary to provide the Service and technical support to you under this Agreement. This license is irrevocable, worldwide, royalty-free, sublicensable (through multiple tiers) and transferable.

You agree that this license includes, without limitation, the right for PodUp to provide, promote, and improve the Service. If you elect to use certain aspects of our Service, we may use this license to make your content available to other companies, organizations or individuals for the syndication, broadcast, distribution, transmission or publication of your show on other media and Service.

Data Export

During the Subscription Term or within 15 days thereafter, if applicable, you may export your Content through your PodUp admin area. PodUp recommends that you regularly backup your own data and information to your own computer, to ensure the protection of your Content from loss. After the end of your Subscription Term, PodUp reserves the right to delete your Content in accordance with its standard schedule and procedures.

Account Deletion

You may elect to proactively delete your account at any time. If your account is deleted due to breaches of this Agreement, all associated content will be deleted permanently and may not be retrievable. PodUp reserves the right to permanently delete any and all of your content upon cancellation or termination of Service with PodUp.

User Generated Content

All shows and all content associated with your use of the Service is your sole responsibility. This means that you, and not PodUp are entirely responsible for all content that you upload, post, email, or otherwise disseminate or transmit via the Service. You agree that: (a) you own all rights, title, and interest in and to the content necessary for your use of the content in the Service and the manner in which you are using it; that (b) you will not use the Service 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 (c) your content complies in all manners with any Community Guidelines that we may post from time to time. Success of your show depends upon you and not PodUp.

Content Accuracy

PodUp does not monitor or guarantee the accuracy, integrity, legality or quality of user generated content. The content provided by you as well as other Users on or through the Service may contain inaccurate, inappropriate, incomplete, untruthful, offensive, indecent, or objectionable material for which PodUp assumes no responsibility. You acknowledge and bear all risk associated with your use or consumption of any content made accessible through the Service, including any reliance on the accuracy, completeness, or usefulness of such content. Under no circumstances will PodUp 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

PodUp does not prescreen or review content in the general course of business. PodUp 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, but are not required to, notify you if we determine that any of your content is inappropriate or does not comply with this Agreement, any posted policies, or applicable laws. To report content that you believe should be removed from the Service, please notify us at support@PodUp.com and inform us of the content you believe should be reviewed or removed and the reasons that we should take such action. PodUp takes such reports seriously, but does not guarantee or warrant that any action whatsoever will be taken. PodUp strives to comply with all laws, rules and regulations regarding all content found in the Service.

PodUP Advertising

PodUp reserves the right to advertise its Service in your content. Your use of the Service is implied consent for PodUp to insert advertisements into your content, or to add its logo to your PodUp public profiles, and/or other published materials.

Users are permitted, and encouraged to monetize their content. Accordingly, you may insert third party advertisement(s) into your content for monetization purposes, but you, and you alone are responsible for soliciting, managing, and supervising such advertisements and verifying compliance with this Agreement and all other restrictions on the use of the Service.

Use of AI

The Service may utilize artificial intelligence to process user inputs to the Service (the “Inputs”), such as text prompts describing images and videos or other content, and generate and return outputs based on such Inputs (the “Outputs”). As set forth in these Terms and Conditions of Service, PodUp reserves the right, but not the obligation, to review or monitor Inputs and Outputs using automated and manual tools. Furthermore, You agree not to use any artificial intelligence tool outside of the Service to access or use the Service. PodUp does not claim ownership of any of your Inputs or Outputs; however, all code, software, processes, templates, proprietary systems, procedures or other similar methods of using or creating your Inputs and Outputs are subject to the Terms and Conditions of Service set forth herein.

Subject to Your compliance with these Terms and Conditions of Service and any other agreement you enter into with PodUp that references these Terms and Conditions of Service, PodUp shall not restrict your commercial use of Your Outputs. You acknowledge that Inputs and Outputs may be used by PodUp to train and improve its AI models, algorithms and related technology, products and services (including for labeling, classification, content moderation and model training purposes). As such, You hereby grant to PodUp a non-exclusive, irrevocable, perpetual, worldwide, royalty-free, fully paid, transferable, sublicensable right and license to use any Inputs and Outputs made available by You or otherwise generated in connection with Your use of the Service at any point. Furthermore, you acknowledge and agree that PodUp and its affiliates may use artificial intelligence, the like of which may or may not be made available to you through the Service, in order to fulfill its obligations to You under these Terms and Conditions of Service or under any other agreement that references these Terms and Conditions of Service.

Prohibited Uses

You are not permitted to use the Service in any illegal manner, or in a way that infringes on the legal or civil rights of others.

You may not use the Service to publish or disclose patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act (as amended and supplemented) (“HIPAA”).

You may not use the Service to publish or disclose banking, credit, debit or other payment card numbers or data.

You may not use the Service to publish or disclose social security numbers, driver’s license numbers or other government ID numbers.

You may not use the Service to publish or disclose any other information subject to regulation or protection under specific laws.

You may not use the Service to publish or disclose any data similar to the above protected under foreign or domestic laws.

You may not use the Service to engage in high-risk activities, or to solicit or encourage others to engage in high-risk activities.

You acknowledge that the Service is not intended to meet any legal obligations for these uses, including HIPAA requirements, and that PodUP is not a Business Associate as defined under HIPAA. Notwithstanding anything else in this Agreement, PodUP has no liability for any Prohibited Use of the Service.

Prohibited Conduct

In order to comply with our legal obligations, PodUp must prohibit certain conduct. Accordingly, you agree not to upload, disseminate, distribute, transmit, engage in, link to, or otherwise display content that contains or promotes material that is lewd, pornographic, unlawful, harmful, threatening, abusive, harassing, obscene, hateful, related to or encourages gambling, promotes any form of addiction, exploiting the images of children under 18 years of age, disclosing personal information belonging to children under 18 years of age, libelous or defamatory, intentionally false or deceptive, advocating for the discrimination of a protected group (whether based on race, skin color, sex, religion, nationality, disability, sexual orientation, age, or similar category), advocating for any illegal or regulated activity (including trafficking, use, or abuse of controlled substances or weapons), or that PodUp deems inappropriate or objectionable.

You agree not to upload any unlawfully recorded conversation.

You agree not to use another’s work as your own and/or without their permission.

You agree not to use automated means, such as, spiders, robots, crawlers, or the like to download, extract or otherwise gather data from any PodUp network, database, or Users.

You agree not to upload, disseminate, distribute, transmit, link to or otherwise display videos, music and other copyrighted material, or infringes on any legally protectable intellectual property rights of another.

You agree not to upload, disseminate, transmit, link to or otherwise display content or code that contains or causes the downloading of any malicious code that contains or executes any software viruses, worms, Trojan horses, time bombs, logic bombs, keystroke logging, or any other computer codes, files or programs designed to interrupt, destroy, impair or limit the functionality of any computer software, hardware, telecommunications equipment or other device or equipment, or that could otherwise delay, disrupt or damage any software, computers or websites.

You agree not to upload, disseminate, transmit, link to or otherwise display Content that uses a botnet or other automated or manual means of generating fraudulent clicks or impressions or otherwise promotes or attempts to encourage impression, click or engagement behavior solely for the purpose of increasing advertising revenue.

You agree not to employ misleading email addresses or falsify information in the header, footer, return path, or any part of any communication, including emails, transmitted through the Service.

You agree not to transmit or send any “junk mail” or “spam.”

You agree not to attack the Service via a denial-of-service attack, a distributed denial-of-service attack, or any other form of attack. You further agree not to use the Service in any manner that could disable, overburden, damage, or impair the Service or interfere with any other user’s use of the Service, including their ability to engage in real time activities through the Service, or that of any other website, app, user interface or the like. 

You agree not to attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Service, the server on which the Service is stored, or any server, computer or database connected to the Service or another User.

You agree not to use or access the Service in any way that violates any applicable federal, state, local or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the U.S. or other countries).

You agree not to do any of the foregoing via hyperlinks to content that is prohibited by PodUp.

Suspension of Service

PodUp may suspend access or remove published content to and use of the Service and related Services in its sole and absolute discretion for breach of this Agreement of any other standards or restrictions imposed by PodUp. We reserve the right to comply with legal authorities or court subpoena as required by law. No fees paid will be refunded if PodUp suspends or cancels Service for violating these Terms and Conditions of Service.

If your account becomes overdue, PodUp reserves the right to suspend Service for non-payment.

When practicable, PodUp may use reasonable efforts to provide you with prior notice of such suspension. If you are able to resolve the issue requiring suspension to PodUp’s satisfaction, PodUp may restore your access to the Service in accordance with this Agreement.

Right To Refuse Service

PodUp reserves the right to refuse service, suspend service, cancel service, block service or otherwise prohibit the use of its service to any User. 

Limited Warranty

PodUp warrants to you that the Service will reasonably, but not perfectly, perform as advertised, and that PodUp will not materially decrease the overall functionality of the Service.

Warranty Remedy

If PodUp breaches its Limited Warranty and you make a reasonably detailed warranty claim within 30 days of discovering the issue, then PodUp will use reasonable efforts to correct the discrepancy. If PodUp cannot do so within 30 days of your warranty claim, either party may terminate the affected Order. PodUp will then refund to you any pre-paid, unused fees for the terminated portion of the Subscription Term. This shall be your exclusive remedy and PodUp’s entire liability for any warranty. 

PodUp’s warranties hereunder do not apply or cover issues caused by misuse or unauthorized modifications, issues in or caused by use of third party service(s), or to trial, beta, or other free evaluation Users.

Disclaimers

Except as expressly provided in this Agreement, PodUp and any and all Service related thereto is provided “AS IS”. PodUp and its suppliers make no other warranties, whether express, implied, statutory or otherwise, and expressly waive and disclaim the implied warranties of merchantability, fitness for a particular purpose, title or noninfringement, and any other warranty provided at law to the fullest extent possible.

PodUp does not warrant that your use of the Service will be uninterrupted, error free, that the Service will meet your requirements, operate in combination with third party services, or maintain your content or data without loss. PodUp is not liable for delays, failures or problems inherent in use of the internet and electronic communications or other systems outside of PodUp’s control.

PodUp further does not warrant that your use of the Service will make you successful, a “rockstar,” an “influencer,” profitable or any other form of fame or fortune. User success depends on the User and not the Service.  

Effective Date

The “Effective Date” of this Agreement is the date which is the earlier of: (1) your initial access to the Service through any means; or (2) the effective date of your first Order. This Agreement will govern your purchases on the Effective Date as well as any future purchases made by you.

Term

This Agreement starts on the Effective Date and continues until 90 days after expiration or termination of all Subscription Terms.

Termination for Cause

Either party may terminate this Agreement (including all Orders) if the other party (a) fails to cure a material breach of this Agreement (including a failure to pay fees) within 30 days after notice, (b) ceases operation without a successor, or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if such a proceeding is instituted against that party and not dismissed within 60 days.

Effect of Termination

Upon expiration or termination of this Agreement or an Order, your access to the Service will cease, except as may be specifically set forth in this Agreement. At your request, PodUp will delete all of your data, content and any or all confidential information it may have. Nonetheless, some or all of any such information may be retained in PodUp’s standard backups after deletion but will remain subject to this Agreement’s confidentiality restrictions.

Ownership

Neither party grants the other party any rights or licenses not expressly set out in this Agreement. Except for PodUp’s use rights in this Agreement, between the parties you retain all intellectual property and other rights in your content and your materials provided to PodUp. Except for your use rights in this Agreement, PodUp and its licensors retain all intellectual property and other rights in the Service, any deliverables and related PodUp technology, templates, formats and dashboards, including any modifications or improvements to these items made by PodUp. PodUp may generate and use data to operate, improve, analyze and support the Service and for other lawful business purposes. If you provide PodUp with feedback or suggestions regarding the Service or other PodUp offerings, PodUp may use the feedback or suggestions without obligation, restriction, recompense or recourse.

Limitations of Liability - Consequential Damages Waiver

Except for Excluded Claims, neither party, its contractors, agents, suppliers, owners or attorneys will have any liability arising out of or related to this Agreement for any loss of use, lost data, lost profits, failure of security mechanisms, revenues, goodwill, interruption of business or any indirect, special, incidental, reliance or consequential damages of any kind, even if informed of their possibility in advance.

Liability Cap

Except for Excluded Claims, each party’s (and its suppliers’) entire liability arising out of or related to this Agreement will not exceed in aggregate the actual amounts paid to PodUp by you during the two (2) months prior to any claim being made under this Agreement or at law.

The waivers and limitations set forth in this Agreement apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy in this Agreement fails of its essential purpose.

Excluded Claims

“Excluded Claims” means: Your breach of Restrictions or Obligations under this Agreement, either party’s breach of Confidentiality (but excluding claims relating to your content), amounts payable to third parties under your obligation to indemnify PodUp under this Agreement, and/or either party’s willful misconduct.

Indemnification by PodUP

PodUp will defend you from and against any third party claim to the extent alleging that the Service (as opposed to your content), when used by you and as authorized in this Agreement, infringes a third party’s patent, copyright, trademark or trade secret, and will indemnify and hold you harmless against any damages or costs awarded against your (including reasonable attorneys’ fees) or agreed in settlement by PodUp resulting from the claim.

Indemnification by You

You will defend PodUp from and against any third party claim to the extent resulting from your content, your data, your materials, or your breach or alleged breach of any obligation set forth in this Agreement, and will indemnify and hold harmless PodUp against any damages or costs awarded against PodUp (including reasonable attorneys’ fees) or agreed in settlement by or resulting from the claim.

Indemnification Procedures

The indemnifying party’s obligations hereunder are subject to receiving prompt notice of the claim with the exclusive right to control and direct the investigation, defense and settlement of the claim. As part of the indemnifying party’s indemnification requirement, the indemnified party agrees to all reasonably necessary cooperation, at its own expense. The indemnifying party may not settle any claim without the indemnified party’s prior consent if settlement would require the indemnified party to admit fault or take or refrain from taking any action (other than relating to use of the Service, when PodUp is the indemnifying party). The indemnified party may participate in a claim with its own counsel at its own expense.

Mitigation and Exceptions

In response to an actual or potential claim, infringing or otherwise, if required by settlement or injunction or as PodUp determines necessary to avoid material liability, PodUp may at its option: (a) procure rights for your continued use of the Service, (b) replace or modify the allegedly infringing portion of the Service to avoid infringement or (c) terminate the affected Order and refund to you any pre-paid, unused fees for the terminated portion of the Subscription Term. PodUp’s obligations hereunder do not apply (1) to the extent infringement results from your modification of the Service or use of the Service in combination with items not specified or provided by PodUp(2) to infringement resulting from software other than the most recent release provided by PodUp(3) to unauthorized use of the Service, (4) if you make any admissions about a claim without PodUp’s prior consent, (5) if you continue to use the Service (or any element thereof) after being notified of allegedly infringing activity or informed of modifications that would have avoided the alleged infringement, or (6) to trials and betas or other free or evaluation use. This sets out your exclusive remedy and PodUp’s entire liability regarding infringement of third party intellectual property rights.

Confidentiality

“Confidential Information” means information disclosed to the receiving party under this Agreement that is designated by the disclosing party as proprietary or confidential or that should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure. PodUP’s Confidential Information includes the terms and conditions of this Agreement and any technical or performance information about the Service. Your Confidential Information includes your content.

Each party covenants and agrees to (a) hold Confidential Information in confidence and not disclose it to third parties except as permitted in this Agreement, and (b) only use Confidential Information to fulfill its obligations and exercise its rights in this Agreement. The receiving party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know (including, for PodUP, its subcontractors)

Nonetheless, these confidentiality obligations do not apply to information that the receiving party can document (a) is or becomes public knowledge through no fault of the receiving party, (b) it rightfully knew or possessed prior to receipt under this Agreement, (c) it rightfully received from a third party without breach of confidentiality obligations or (d) it independently developed without using the disclosing party’s Confidential Information.

Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone are an insufficient remedy. As such, each party may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Agreement.

Nothing in this Agreement prohibits either party from making disclosures, including of your content and other Confidential Information, if required by law, subpoena or court order, provided (if permitted by law) it notifies the other party in advance and cooperates in any effort to protect confidential treatment.

Trials and Betas

If you receive access to the Service or Service features on a free or trial basis or as an alpha, beta or early access offering (“trials and betas”), use is permitted only for your internal evaluation during the period designated by PodUP (or if not designated, 30 days). Trials and betas are optional and either party may terminate trials and betas at any time for any reason. Trials and betas may be inoperable, incomplete or include features that PodUP may never release, and their features and performance information are PodUP’s Confidential Information. Notwithstanding anything else in this Agreement, PodUP provides trials and betas “AS IS” with no warranty, indemnity or support and its liability for trials and betas will not exceed US $25.

Promotional Use

You agree that PodUP may include your name, likeness and/or your trademark(s) in PodUP’s lists and promotional materials.

No Legal Or Tax Advice

PodUp is a show technology company that makes creating, producing and monetizing shows simpler and more affordable. Please note that PodUp is not a lawyer referral service, accountant referral service, accounting firm, or law firm, does not provide legal or tax advice or representation, and is not intended as a substitute for an attorney, accountant, accounting firm, or law firm. PodUp has placed the information on this website as a service to the general public. While some of the information on this site is about legal and/or tax issues, it is not, and is not intended as legal or tax advice or as a substitute for the particularized advice of your own counsel. Anyone seeking specific legal, tax or professional advice or assistance should retain an attorney, accountant or other licensed professional as the case may be. This website could include inaccuracies or typographical errors. The materials on this website do not constitute legal advice, do not necessarily reflect the opinions of PodUp or any of its employees, and are not guaranteed to be correct, complete, or up-to-date. The information on this website is provided “AS IS” without warranty of any kind, either express or implied, including but not limited to, the implied warranties of merchantability, fitness for a particular purpose, or non-infringement. Each individual document published on this website may contain other proprietary notices and copyright information relating to that specific document.

Assignment

Neither party may assign this Agreement without the prior consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all its assets or voting securities. Any non-permitted assignment is void. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.

Governing Law, Jurisdiction and Venue

This Agreement is governed by the laws of the State of Delaware without regard to conflicts of laws provisions and without regard to the United Nations Convention on the International Sale of Goods. The sole and exclusive jurisdiction and venue for any action related to this Agreement shall be the state courts in and for Madison County, Idaho, and both parties submit to the personal jurisdiction of said courts.

Arbitration

If a dispute arises between the parties to this Agreement, the parties hereby agree to resolve such dispute exclusively via expedited and mandatory binding arbitration. The arbitration will be conducted in accordance with the procedures in this Agreement and the Arbitration Rules for Professional Accounting and Related Services Disputes of the AAA (“AAA Rules”). In the event of a conflict, the provisions of this Agreement will control.

The arbitration will be conducted before an arbitrator, regardless of the size of the dispute, to be selected as provided in the AAA Rules. Any issue concerning the extent to which any dispute is subject to arbitration, or concerning the applicability, interpretation or enforceability of these procedures, including any contention that all or part of these procedures are invalid or unenforceable, shall be governed by the Federal Arbitration Act and resolved by the arbitrator. No potential arbitrator may serve unless he or she has agreed in writing to abide and be bound by these procedures.

The arbitrator may not award non monetary or equitable relief of any sort, except as specifically set forth in this Agreement. They shall have no power to award (i) damages inconsistent with the Agreement or (ii) punitive damages or any other damages not measured by the prevailing party’s actual damages, and the parties expressly waive their right to obtain such damages in arbitration or in any other forum. In no event, even if any other portion of these provisions is held to be invalid or unenforceable, shall the arbitrators have power to make an award or impose a remedy that could not be made or imposed by a court deciding the matter in the same jurisdiction.

No discovery will be permitted in connection with the arbitration unless it is expressly authorized by the arbitrator upon a showing of substantial need by the party seeking discovery.

All aspects of the arbitration shall be treated as confidential, and expedited. Neither the parties nor the arbitrator may disclose the existence, content or results of the arbitration, except as necessary to comply with legal or regulatory requirements. Before making any such disclosure, a party shall give written notice to all other parties and shall afford such parties a reasonable opportunity to protect their interests.

The result of the arbitration will be binding on the parties, and judgment on the arbitrator’s award may be entered in any court having jurisdiction in accordance with this Agreement.

Attorneys’ Fees and Costs

Should either party bring an action against the other party to this Agreement, whether via arbitration or in a court at law, the prevailing party in any claim or action to enforce this Agreement will be entitled to recover its reasonable attorneys’ fees and costs in connection with such claim or action.

Force Majeure

Neither party is liable for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) due to events beyond its reasonable control, such as a pandemic, strike, blockade, war, act of terrorism, riot, Internet or utility failures, government action, refusal of government license or natural disaster.

Subcontractors

PodUp may use subcontractors and permit them to exercise PodUp’s rights, but PodUp remains responsible for their compliance with this Agreement and for its overall performance under this Agreement.

Export

You agree to comply with all relevant sanctions and foreign export and import laws in using the Service. You represent and warrant that you are not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (b) agree not to access or use the Service in violation of any U.S. export or economic embargo, prohibition or restriction and (c) will not submit to the Service any information controlled under the U.S. International Traffic in Arms Regulations.

Open Source

Aspects of PodUp may incorporate third party open-source software (“OSS”). To the extent required by the OSS license, that license will apply to the OSS on a stand-alone basis instead of this Agreement.

Government Users

Elements of the Service are commercial computer software. If the user or licensee of the Service is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Service or any related documentation of any kind, including technical data and manuals, is restricted by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Service was developed fully at private expense. All other use is prohibited.

Notices

Except as set out in this Agreement, any notice or consent under this Agreement must be in writing and will be deemed given: (a) upon receipt if by personal delivery, (b) upon receipt if by certified or registered U.S. mail (return receipt requested) or (c) one day after dispatch if by a commercial overnight delivery service. If to PodUpnotice must be provided to: PodUp INC., Attn: Legal Department, 20 West 1st South #1, Rexburg, ID 83440. All notices to PodUp must include a copy emailed to support@PodUp.com. If to the User, PodUp may provide notice to the address you provided at registration. Either party may update its address with notice to the other party. PodUp may also send operational notices to you via email or through the Service.

Entire Agreement

This Agreement is the parties’ entire agreement regarding its subject matter and supersedes any prior or contemporaneous agreements regarding its subject matter. In this Agreement, headings are for convenience only and “including” and similar terms are to be construed without limitation. This Agreement shall become effective as set forth herein and is not required to be executed by any party individually.

PODALLIES 

SUPPLEMENTAL TERMS OF SERVICE

From time to time, PodUp may provide services for clients under the business name of PodAllies Agreement. When so doing, any such client is subject to PodUp Terms and Conditions of Service set forth above, PodUp’s Privacy Policy (available at PodUp.com/privacy-policy), PodUp’s Video Privacy (available at PodUp.com/video-privacy-protection-policy), as well as these Supplemental Terms of Service, each of which is incorporated herein by this reference, too. By accepting any PodAllies service,  Client agrees to be bound by these terms.

PodAllies provides a number of services that incorporate or are based on the PodUp platform. By engaging PodAllies, Client further agrees to the following terms:

DESCRIPTION OF SERVICES OFFERED. PodAllies offers a variety of services when a Client enters into a written contractual agreement for services (the “Agreement”). The PodUp platform is included in each PodAllies Agreement as long as the Client subscribes to PodAllies’ services. Upon termination of the PodAllies Agreement, for whatever reason whatsoever, all services shall cease, including access or use of the PodUp platform. As such, should Client wish to continue to use the PodUp software following termination of their Agreement, Client shall be required to register for and subscribe to the PodUp software as offered at that time

TERM OF SERVICES. The Agreement shall control the Term of the engagement between PodAllies and Client. Should the agreement begin on any day other than the first day of the month, the first month of recurring services shall be prorated in terms of both cost and services offered, and the term of service shall not begin until the first day of the month thereafter. Any One-Time Startup Services Fee shall not be prorated. PodAllies may provide additional monthly services based on the Client’s reasonable requests. Should the Client request additional services, the Client shall be billed for any additional requested services provided as outlined in the Agreement; however, if the Agreement fails to account for any additional requested services requested by Client, Client shall be billed at the then customary rate charged by PodAllies at that time. The Client’s agreement to pay any additional fees and costs associated with such additional services shall be binding upon the Client at the time of request by the Client. At the end of the Term, Client shall be allowed to terminate theirAgreement by providing PodAllies written notice of termination no less than thirty (30) days before the end of the Term. Otherwise, the Agreement shall automatically renew for consecutive identical terms until terminated by Client, as set for herein. Upon automatic renewal, the Client shall be charged the cost outlined in the Agreement on a monthly basis for the duration of the term but shall not be charged the One-Time / Startup Services fee upon renewal, if any. Should the Client fail to timely pay any amounts owed and outstanding, PodAllies reserves the right to suspend the performance of Services and withhold delivery of materials until payment in full of all amounts due is received, including, not limited to, website hosting with a message similar to “This show has been paused” being placed thereon, or something similar, at the complete discretion of PodAllies. PodAllies shall not be liable for any damages, losses, or liabilities that may arise out of its suspension of performance and/or withholding of materials due to the Client’s non-payment. PodAllies shall be entitled to all of its costs of collection of amounts outstanding, including, but not limited to, its attorneys’ fees and costs. Services may not thereafter resume until all delinquent payments are cured, including payment of any and all late payment fees. Should the Client provide PodAllies with a written notice of cancellation as set forth above, the Client’s services shall continue for the duration of the Term, and termination shall only be effective at the end of any subsequent term. Client may not terminate early. Client shall continue to be billed monthly for the duration of the Term, and Client shall not be entitled to a refund or credit for any services when Client attempts to terminate the Agreement before the end of a Term.

TIME OF PAYMENT Client shall pay for services in advance. Should the Agreement begin on any day other than the first day of the month, then Client’s initial payment for recurring services shall be prorated based upon the number of days remaining in the month. For example, should the Agreement begin on the 6th day of the month in a month containing 30 calendar days, then the Client would prepay 25/30 of the cost for recurring services outlined in the Cost of Services set forth above. The client would then prepay on the first day of each month thereafter the full amount outlined in the Cost of Services above for the duration of the term. One-Time / Startup Services at fees shall not be prorated.

LATE PAYMENT. Any payment received later than five business days following the first day of the month shall be considered late and is subject to a 2.5% late payment fee and shall accrue interest at the rate of 1.5% per month.

CREDIT CARD PAYMENTS PodAllies only accepts credit card payments for its services. Client agrees and understands that the charges on a credit card pursuant to the Agreement are irrevocable, indisputable, and may not be charged back, contested, or challenged now or in the future and that doing so is a material breach of the Agreement for which PodAllies would be entitled to its reasonable attorney fees, costs, and other fees associated with addressing such chargeback in addition to the amount challenged. Should the Client not pay the amount submitted by PodAllies for the cost of the chargeback within 30 days after PodAllies or PodUp, Inc. has submitted its amount of cost due to the Client contesting a charge, the charges will be turned over to a collection agency and may be reported to associated credit reporting agencies. PodAllies shall have at its sole discretion any and all other legal remedies it may choose to pursue

EXPENSES. As part of the Services provided by PodAllies, the Client may incur third-party expenses. As set forth above, these expenses may include, for example, pay-per-click advertising, social media advertising, domain names, influencer compensation, stock photography and video licensing, travel expenses, outside software/technology licensing (such as ClickFunnels), compensating survey responders, etc. PodAllies will not incur on the Client’s behalf any such expenses without the Client’s prior approval, including setting a monthly budget for any such monthly expense. The Client agrees to be responsible for timely paying any third-party expense and/or reimbursing PodAllies for any such expense advanced on the Client’s behalf by PodAllies

TERM/TERMINATION. PodAllies agreements are not a month-to-month agreement, but an agreement for a set term. The Agreement shall become effective upon execution by the Client. After the initial Term, the Agreement shall renew automatically, at the price(s) then in effect, until the Agreement is terminated by the Client, as set forth herein. PodAllies may cancel the Agreement at any time for any reason by providing a written thirty (30) day notice to the Client.  

EARLY TERMINATION Client shall be allowed to terminate their Agreement prior to the end of the Term by providing PodAllies with no less than thirty (30) days written notice of termination and payment of the Early Termination Fee. The Early Termination Fee shall consist of: 1)  Payment of any setup fee that was waived at the start of the Agreement; and 2) a fee equal to one month of service.  The thirty (30) day written notice of termination shall not become effective until payment of the Early Termination Fee is received by PodAllies.

ARTISTIC DISAGREEMENTS Many of the services provided by PodAllies are artistic in nature. As such, the quality of any such service may be judged more subjectively than objectively. Any dislike, disagreement or objection to the services provided to Client by PodAllies that are subjective in nature shall not form the basis of termination or pausing of the Agreement, or otherwise excuse nonpayment by Client.  Instead, if a Client is unhappy with a design, video, website or other artistic service provide by PodAllies, the Client shall provides specific, written, reasonable change requests within the timeframe for feedback set forth herein and PodAllies will make such changed when reasonably possible to do so.

PAUSING SERVICE Client shall be allowed to pause service, or “skip a month of production” no more than two (2) times in a twelve (12) month period. For each month in which service is paused, Client’s contractual agreement for services shall be automatically extended for the number of months in which services are paused. In order to pause service, client shall provide PodAllies no less than seven (7) business days written notice prior to the start of a new monthly billing cycle of Client’s desire to pause service and pay fifty percent (50%) of the contractual billing amount on time.  During any pause, Client shall still have access to the all PodUp software features contained in their Agreement, PodAllies shall continue to host and maintain Client’s website, and Client may continue to record episodes if so desired. No other services shall be provided during any pause, including, but not limited to editing, publishing, or promoting Client’s episodes during any such pause(s). Furthermore, pausing service shall disqualify Client from qualifying for any discount(s) or guarantee(s) made by PodAllies to Client as part of their Agreement during the paused month(s) and for a period of two (2) months thereafter.

REFUNDS Any refund requests must be made in writing by the Client by the 10th day of the month for any issues that occurred during the previous month. The timeliness of submitting refund requests is critical so that PodAllies has time to fix any issues and mitigate the damages. Any refund requests received after the 10th day of the month for issues that occurred during the previous month will not be considered. Refunds will not be given for more than 1 month. No refunds or credits will be given if some of the contracted episodes are not published in a month as a result of the Client not recording and delivering the episodes or providing edits within the time period set forth in their Agreement

RELATIONSHIP OF PARTIES It is understood by the parties that PodAllies is an independent contractor with respect to the Client and not an employee of the Client. The Client will not provide fringe benefits, including health insurance benefits, paid vacation, or any other employee benefits, for the benefit of PodAllies.

LAWS AFFECTING ELECTRONIC COMMERCE. Client agrees that Client and Client alone is solely responsible for complying with laws, taxes, and tariffs that governments enact and fix from time to time in connection with internet-based electronic commerce and shall indemnify, hold harmless, protect, and defend PodAllies and its subcontractors from any cost, claim, suit, penalty, or tariff, including attorneys’ fees, costs, and expenses, arising from Client’s exercise of Internet electronic commerce. PodAllies does not, and will not, provide any professional advice, tax, legal or otherwise, regarding compliance with any law or regulation that may impact electronic commerce. If any legal disclaimers are required for the Client’s services, including but not limited to websites, apps, shows or content, the Client is responsible for providing such disclaimers and is responsible for the content of the disclaimers. The Client agrees that it has not and will not seek any advice from PodAllies regarding the same.

ACCEPTABLE USE POLICY. Client agrees to use PodAllies services only for lawful purposes and in accordance with their Agreement. The Client shall not use services to transmit, distribute, or store material that is unlawful, defamatory, fraudulent, harmful, contains pornography or nudity, or violates the rights of others.

RIGHTS, OWNERSHIP, AND USAGE.  Subject to PodAllies’ receiving full payment under the Agreement in a timely manner, PodAllies shall assign Client, without representation or warranty, all rights, title and interest PodAllies may have in the the content created exclusively  for the Client on the PodUp platform or through PodAllies' services pursuant to the Agreement, except that:

(a) PodAllies may use and distribute such work, along with the company name and logo of the Client, as part of its website, social channels, portfolio, and other marketing channels for promotional purposes;

(b) PodAllies shall own and retain all rights to any and all concepts, ideas, designs, proposals and other work and materials (collectively, "Work") which have been presented to Client but not included in the final work product;

(c) PodAllies shall own and retain all rights to the PodUp technology, software and/or platform, technical documentation, inventions, algorithms, software, architecture, logic, navigation, 3d modeling files, animation files and other source files for front-end deliverables, computer programs, source codes, game engines or other backend and background elements, influencer/guest spreadsheets, templates,  files, keyword lists, and features incorporated into or utilized by the Work (collectively, “Background Technology”). Unless the parties agree otherwise in a written agreement signed by the PodUp CEO. PodAllies shall retain ownership of any and all Background Technology, including any and all associated intellectual property rights. PodAllies hereby grants to Client a nonexclusive, royalty-free, revocable, worldwide license for the duration of the Agreement to use, reproduce, distribute, display, and perform PodAllies’s Background Technology in compiled machine-readable object code form only, to the extent incorporated into any Service provided hereunder strictly for the purposes and in the territories set out in the Agreement and not to license, distribute, disclose or resell to other parties.

(d) PodAllies shall have the right to place simple, compelling text and/or links  (including links to PodUp.com and PodAllies.com) in the footer of the pages on the Client websites or in emails.

VIDEO STORAGE POLICY. PodAllies will retain original RAW video files for ONE month after publishing and then that original video will be deleted from the servers.

NON-SOLICITATION. Neither Client nor PodAllies shall solicit the other’s employees as independent contractors of PodAllies or engage them in any work independent of the parties’ relationship under the Agreement during the term of the Agreement and for forty-eight (48) months thereafter..

NON-DISPARAGEMENT. The Client and PodAllies agree that they shall not disparage each other or the employees or owners of the other party in any way, including online and anywhere else, during the term of the Agreement and for a period of four (4) years following the termination of the Agreement.

DISCLAIMERS. PODALLIES SHALL NOT BE HELD RESPONSIBLE FOR DELAYS OR NON-PERFORMANCE CAUSED BY ACTIVITIES OR FACTORS BEYOND ITS REASONABLE CONTROL, INCLUDING DELAYS AND NONPERFORMANCE CAUSED BY FORCES OF NATURE, NATURAL DISASTERS, PANDEMICS, VIRUSES, DENIAL OF SERVICE ATTACKS, OTHER ACTS OR OMISSIONS BY THIRD PARTIES, INTERNET SERVICE PROVIDERS, CLIENT OR ITS CONTRACTORS, STRIKES, EMPLOYEE TERMINATION, LOCKOUTS, WORK SLOWDOWNS OR STOPPAGES, ACCIDENTS, FIRES, ACTS OF GOD, TERRORISM, FAILURE BY CLIENT TO TIMELY FURNISH INFORMATION OR APPROVE OR DISAPPROVE WORK, OR FAULTY PERFORMANCE BY CLIENT OR OTHERS, INCLUDING THIRD-PARTY CONTRACTORS HIRED BY PODALLIES OR BY CLIENT. PODALLIES SHALL NOT BE LIABLE FOR ANY INDIRECT, THIRD-PARTY, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES ARISING FROM THE AGREEMENT. PODALLIES’ MAXIMUM LIABILITY UNDER THE AGREEMENT SHALL NOT EXCEED THE TOTAL FEES RECEIVED DURING THE PREVIOUS TWO (2) MONTHS FROM THE CLIENT UNDER THE AGREEMENT.  IT IS UNDERSTOOD THAT ALL WEBSITES AND DIGITAL PROJECTS HAVE CHALLENGES AND ISSUES AT TIMES, INCLUDING BUT NOT LIMITED TO SERVER DOWNTIME, LATENCY, EMAIL SERVER GOING DOWN, ERRORS, BROKEN LINKS, MISSPELLINGS, BAD KEYWORDS, REVENUE GENERATION, ADVERTISING CAMPAIGNS, MARKETING RESULTS, ETC. IT IS IMPOSSIBLE FOR ANY WEB DEVELOPMENT, MARKETING, OR CONSULTING FIRM TO GUARANTEE THESE TYPES OF ISSUES. WHEN PODALLIES BECOMES AWARE OF THESE TYPES OF ISSUES, PODALLIES AGREES TO WORK WITH THE CLIENT TO ATTEMPT TO IMPROVE OR RESOLVE THEM AS QUICKLY AS PODALLIES AND THE CLIENT REASONABLY CAN DO SO TOGETHER. IT IS POSSIBLE THAT SOME ISSUES MAY NOT BE ABLE TO BE RESOLVED. CLIENT AGREES THAT PODALLIES AND ITS OFFICERS AND EMPLOYEES PROVIDE NO GUARANTEES AND SHALL HAVE NO LIABILITY OR RESPONSIBILITY TO PAY DAMAGES RELATED TO GUARANTEES OR THESE TYPES OF ISSUES. WHEN PODALLIES REPORTS THAT A PROJECT IS COMPLETED AND/OR READY TO BE TESTED, THE CLIENT AGREES TO TEST THAT PROJECT THOROUGHLY AND PROMPTLY AND TO INFORM PODALLIES IN WRITING OF ANY ISSUES SO THAT PODALLIES CAN FIX THEM. PODALLIES CANNOT PROVIDE ANY GUARANTEES RELATED TO FUTURE PERFORMANCE.  IF THERE ARE ANY ISSUES BETWEEN THE PARTIES, THEY AGREE TO DO THEIR BEST TO FIND A MUTUALLY AGREEABLE SOLUTION. IF THAT IS UNSUCCESSFUL, THE PARTIES AGREE TO SUBMIT THE DISPUTE TO EXPEDITED AND BINDING ARBITRATION IN MADISON COUNTY, IDAHO. IF PODALLIES ASSISTS IN PREPARING TERMS OF SERVICE, PRIVACY POLICIES, COMMUNITY GUIDELINES, EBOOK DISCLAIMERS, COPYRIGHT NOTICES, TRADEMARK APPLICATIONS, COPYRIGHT APPLICATIONS, SITE CONTENT, INFLUENCER AGREEMENTS, AFFILIATE AGREEMENTS, AUTHOR AGREEMENTS, MEDIA RELEASE AGREEMENTS, OR OTHER PROJECTS RELATED TO LEGAL, ACCOUNTING OR MEDICAL INFORMATION, CLIENT AGREES AND UNDERSTANDS THAT PODALLIES IS ONLY ASSISTING FOR MARKETING PURPOSES AND THAT PODALLIES IS NOT AN ATTORNEY, ACCOUNTANT OR DOCTOR AND DOES NOT PROVIDE LEGAL, ACCOUNTING, MEDICAL OR ANY OTHER FORM OF PROFESSIONAL ADVICE OR SERVICES. CLIENT AGREES AND CONFIRMS THAT THERE IS NO ATTORNEY-CLIENT RELATIONSHIP BETWEEN THE PARTIES, THAT PODALLIES IS NOT, HAS NOT, AND WILL NOT PROVIDE ANY LEGAL, MEDICAL OR ACCOUNTING ADVICE, AND THAT PODALLIES HAS RECOMMENDED THAT THE CLIENT CONSULT WITH SUCH EXPERTS REGARDING THE SAME. THE CLIENT AGREES TO NOT RELY ON ANY LEGAL, ACCOUNTING, OR MEDICAL ASSISTANCE PROVIDED BY PODALLIES AND TO SEEK QUALIFIED LEGAL, ACCOUNTING, OR MEDICAL ADVICE AS NEEDED

NO WARRANTY FOR EXTERNAL TOOLS OR PLATFORMS. PodAllies makes no warranties regarding the compatibility, availability, or functionality of third-party tools, APIs, or external platforms that integrate with PodAllies Services. Client’s use of such external tools is made at their own risk. PodAllies disclaims any liability arising from use, nonuse, failures, issues, disruptions, or any other form of harm whatsoever related to such tools.

 CLIENT'S OBLIGATION TO MITIGATE DAMAGES. In the event of any issue, breach, or dispute arising from the use of the Services, Client agrees to take reasonable and timely steps to mitigate any damages suffered. Failure to mitigate damages will limit the Client’s right to claim compensation or pursue legal remedies.

PROHIBITION OF SCRAPING AND DATA MINING. Clients are strictly prohibited from scraping, crawling, or otherwise extracting data from PodAllies’ databases, website, software, or any related tools without the express written consent of PodAllies. This includes, but is not limited to, the use of automated systems (such as bots or scripts) to access, retrieve, or mine data. Any such actions are a violation of the Agreement and the PodUp Terms and Service and will result in immediate termination of services and potential legal action.

BETA SERVICES. PodAllies may offer Beta Services that are experimental in nature and not subject to guarantees regarding performance or availability. Use or acceptance by Client of any such service is taken by Client at their own risk

FEEDBACK. ‍Any feedback provide to PodAllies is voluntary, and you agree that PodAllies may use such feedback without obligation to you

CLIENT’S LEGAL COMPLIANCE OBLIGATION. Clients are solely responsible for ensuring compliance with any and all laws applicable to Client. In no way shall PodAllies provide legal advice or service to Client, and Client agrees and covenants with PodAllies that any service requested and its use of such service from PodAllies complies with all applicable local, state, national, and international laws and regulations, including but not limited to laws regarding privacy, intellectual property, and marketing communications. Client is responsible for ensuring all content provided to PodAllies is appropriate, legal, and does not violate any third-party rights. PodAllies reserves the right to refuse to publish or promote content that it deems inappropriate, illegal, or potentially harmful to its reputation. PodAllies shall not be liable for any claims, penalties, or damages arising from Client’s failure to comply with any law(s) or for PodAllies refusal to publish or promote any material it finds to be illegal, infringing, lewd or otherwise objectionable, as set forth herein.

CONFIDENTIAL INFORMATION. Client shall maintain in strict secrecy all confidential or trade secret information, whether patentable or not, relating to the business of PodAllies (the “Confidential Information”) or any of Clients or former clients of PodAllies, obtained by Client, directly or indirectly, from PodAllies, and shall not, unless first authorized in writing by PodAllies, disclose, or use any such Confidential Information in any way. For purposes hereof, Confidential Information shall include without limitation any technical plans and drawings or other reproductions or materials of any kind; any financial information with respect to PodAllies or its business; any trade secrets, knowledge, or information with respect to products, processes, inventions, formulae, software, source codes, object codes, algorithms, and services provided; any operating procedures, techniques, or know-how; any consulting templates, manuals, terminology, work product, client certification programs, training courses, diagrams, and any other intellectual property utilized in, related to, or arising from the business of PodAllies; business methods or forms; any names, addresses, or data on suppliers or customers; and any business policies or other information relating to or dealing with the purchasing, sales, advertising, promotional, or distribution policies or practices of PodAllies. The Client may not disclose publicly if the content was created by a ghostwriter.

EVERY SERVICE WILL NOT BE PROVIDED EVERY MONTH. Podallies may offer various services to Client; however, not each and every such service shall be provided to Client on a monthly basis. Not every client will require every service offered within their selected services on a monthly basis. As such, PodAllies shall be considered to be in full compliance with their Agreement even though it may not provide every service every month, and the Client shall not be entitled to any refund for services not provided in any given month.

SEVERABILITY. If any provision shall be held invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of the Agreement is invalid or unenforceable but that by limiting such provision, it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.

MODIFICATION/AMENDMENTS. The Agreement and PodUp’s Standard Terms and Conditions of Service may be modified by PodAllies at any time, with or without prior notice to the Client. Amendments or modifications shall not be binding on the Client for thirty (30) days following notification of the changes by PodUp to Client. Thereafter, any and all such amendments or modifications shall be binding upon client unless objected to by client in writing received by PodUp no later than thirty (30) days following notification of such changes by PodUp to Client. Should Client object in writing to any such amendments or modifications in a timely manner, any such amendment of modification shall not become binding up Client. In no case shall an amendment or modification properly noticed by PodAllies to Client form the basis of pausing service, terminating service, or failure to timely pay for services. Client shall be deemed to have received notice of any modification or agreement when: 1) emailed to client; or 2) posted to the Terms and Conditions of Service incorporated into the Agreement. No amendment shall be binding upon PodAllies without PodAllies' prior express written consent. The Client’s continued acceptance of services from PodAllies shall constitute the Client’s acceptance of any amendment or modification, unless timely objected to by Client as allowed for herein.

NOTICES. Any notice required to be given pursuant to PodAllies shall be in writing and emailed to PodAllies at nathan@podup.com or to the Client at the email address provided at the time of registration. 

APPLICABLE LAW AND EXCLUSIVE JURISDICTION AND VENUE. The Agreement shall be governed by the laws of the State of Idaho, and the state courts in and for Madison County, Idaho, shall have exclusive and sole jurisdiction for any dispute between the parties. 

NO GUARANTEE – DISCLAIMER OF WARRANTIES. PODALLIES DOES NOT PROMISE, GUARANTEE, OR WARRANT THAT THE CLIENT’S BUSINESS WILL BE SUCCESSFUL OR MAKE ANY MONEY WHATSOEVER. PODALLIES’ WEBSITES AND SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. PODALLIES MAKES NO REPRESENTATION OR WARRANTY AS TO THE ACCURACY, RELIABILITY, TIMELINESS, OR COMPLETENESS OF ANY MATERIAL ON OR ACCESSIBLE THROUGH ANY PODALLIES WEBSITE OR SERVICE. ANY RELIANCE ON OR USE OF SUCH MATERIALS SHALL BE AT YOUR SOLE RISK. PODALLIES MAKES NO REPRESENTATION OR WARRANTY (A) THAT ANY PODALLIES WEBSITE OR SERVICE WILL BE AVAILABLE ON A TIMELY BASIS, OR THAT ACCESS TO ANY PODALLIES WEBSITE OR SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE; (B) THAT DEFECTS OR ERRORS WILL BE CORRECTED; OR (C) THAT ANY PODALLIES’ WEBSITE OR THE SERVERS OR NETWORKS THROUGH WHICH ANY PODALLIES WEBSITE IS MADE AVAILABLE ARE SECURE OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THIS DISCLAIMER AND WAIVER ARE APPLICABLE TO THE FULLEST EXTENT PERMITTED BY LAW. SHOULD THE LAW APPLICABLE TO YOU PROHIBIT ANY SUCH WAIVER OR DISCLAIMER, THEN THE ABOVE-REFERENCED WAIVER AND DISCLAIMER SHALL BE APPLICABLE TO THE FULLEST EXTENT PERMITTED BY THE LAW APPLICABLE TO YOU.

LIMITATION OF LIABILITY. YOU AGREE THAT IN NO EVENT SHALL PODALLIES BE LIABLE TO YOU FOR ANY CLAIM OF ANY KIND OR DESCRIPTION EXCEEDING THE AMOUNT OF TWO (2) TIMES THE AMOUNT PAID BY YOU TO PODALLIES FOR THE MONTH PRECEDING THE DATE ON WHICH THE FACTS GIVING RISE TO A CLAIM AGAINST PODALLIES OCCURRED. YOU WAIVE ANY RIGHT TO SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES OF ANY KIND OR DESCRIPTION.

INDEMNITY. CLIENT AGREES TO PROTECT, DEFEND, INDEMNIFY, AND HOLD HARMLESS PODALLIES, ITS OFFICERS, DIRECTORS, EMPLOYEES, OWNER(S), AND PARENT COMPANY(IES) AND ASSIGNS FROM AND AGAINST ALL CLAIMS, DEMANDS, AND CAUSES OF ACTION OF EVERY KIND AND CHARACTER WITHOUT LIMIT ARISING OUT OF CLIENT’S CONDUCT. THE CLIENT’S INDEMNITY OBLIGATIONS INCLUDE, BUT ARE NOT LIMITED TO, ANY THIRD-PARTY CLAIM AGAINST PODALLIES FOR LIABILITY FOR PAYMENTS FOR, DAMAGES CAUSED BY, OR OTHER LIABILITY RELATING TO, THE CLIENT

WAIVER OF CLASS ACTION CLAIMS. THE CLIENT DOES HEREBY AGREE TO AND DOES WAIVE ANY AND ALL RIGHTS TO BRING ANY AND ALL CLAIM(S) IN THE FORM OF A CLASS ACTION. THE CLIENT UNDERSTANDS AND AGREES THAT THE CLIENT WILL NOT HAVE THE RIGHT TO PARTICIPATE IN A REPRESENTATIVE CAPACITY OR AS A MEMBER OF ANY CLASS OF CLAIMANTS PERTAINING TO ANY CLAIMS THAT MAY ARISE UNDER OR BE IN ANY WAY RELATED TO THE AGREEMENT. THERE IS NO RIGHT OR AUTHORITY FOR ANY CLAIM CLIENT HAS AGAINST PODALLIES TO BE BROUGHT ON A CLASS ACTION BASIS OR ANY BASIS INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC OR ON BEHALF OF OTHER PERSONS OR ENTITIES SIMILARLY SITUATED. CLAIMS BROUGHT AGAINST PODALLIES MAY NOT BE JOINED OR CONSOLIDATED WITH CLAIMS BROUGHT BY ANYONE ELSE.

BINDING ARBITRATION. IF A DISPUTE ARISES BETWEEN THE PARTIES TO THE AGREEMENT, THE PARTIES HEREBY AGREE TO RESOLVE SUCH DISPUTE EXCLUSIVELY VIA EXPEDITED AND MANDATORY BINDING ARBITRATION. THE ARBITRATION WILL BE CONDUCTED IN ACCORDANCE WITH THE PROCEDURES IN THE AGREEMENT AND THE ARBITRATION RULES FOR PROFESSIONAL ACCOUNTING AND RELATED SERVICES DISPUTES OF THE AAA (“AAA RULES”).  IN THE EVENT OF A CONFLICT, THE PROVISIONS OF THE AGREEMENT WILL CONTROL. THE ARBITRATION WILL BE CONDUCTED BEFORE AN ARBITRATOR, REGARDLESS OF THE SIZE OF THE DISPUTE, TO BE SELECTED AS PROVIDED IN THE AAA RULES.  ANY ISSUE CONCERNING THE EXTENT TO WHICH ANY DISPUTE IS SUBJECT TO ARBITRATION OR CONCERNING THE APPLICABILITY, INTERPRETATION, OR ENFORCEABILITY OF THESE PROCEDURES, INCLUDING ANY CONTENTION THAT ALL OR PART OF THESE PROCEDURES ARE INVALID OR UNENFORCEABLE, SHALL BE GOVERNED BY THE FEDERAL ARBITRATION ACT AND RESOLVED BY THE ARBITRATOR.  NO POTENTIAL ARBITRATOR MAY SERVE UNLESS HE OR SHE HAS AGREED IN WRITING TO ABIDE BY AND BE BOUND BY THESE PROCEDURES. THE ARBITRATOR MAY NOT AWARD NON-MONETARY OR EQUITABLE RELIEF OF ANY SORT. THEY SHALL HAVE NO POWER TO AWARD (I) DAMAGES INCONSISTENT WITH THE AGREEMENT OR (II) PUNITIVE DAMAGES OR ANY OTHER DAMAGES NOT MEASURED BY THE PREVAILING PARTY’S ACTUAL DAMAGES, AND THE PARTIES EXPRESSLY WAIVE THEIR RIGHT TO OBTAIN SUCH DAMAGES IN ARBITRATION OR IN ANY OTHER FORUM.  IN NO EVENT, EVEN IF ANY OTHER PORTION OF THESE PROVISIONS IS HELD TO BE INVALID OR UNENFORCEABLE, SHALL THE ARBITRATORS HAVE THE POWER TO MAKE AN AWARD OR IMPOSE A REMEDY THAT COULD NOT BE MADE OR IMPOSED BY A COURT DECIDING THE MATTER IN THE SAME JURISDICTION. NO DISCOVERY WILL BE PERMITTED IN CONNECTION WITH THE ARBITRATION UNLESS IT IS EXPRESSLY AUTHORIZED BY THE ARBITRATOR UPON A SHOWING OF SUBSTANTIAL NEED BY THE PARTY SEEKING DISCOVERY. ALL ASPECTS OF THE ARBITRATION SHALL BE TREATED AS CONFIDENTIAL AND EXPEDITED.  NEITHER THE PARTIES NOR THE ARBITRATOR MAY DISCLOSE THE EXISTENCE, CONTENT, OR RESULTS OF THE ARBITRATION EXCEPT AS NECESSARY TO COMPLY WITH LEGAL OR REGULATORY REQUIREMENTS.  BEFORE MAKING ANY SUCH DISCLOSURE, A PARTY SHALL GIVE WRITTEN NOTICE TO ALL OTHER PARTIES AND SHALL AFFORD SUCH PARTIES A REASONABLE OPPORTUNITY TO PROTECT THEIR INTERESTS. THE RESULT OF THE ARBITRATION WILL BE BINDING ON THE PARTIES, AND JUDGMENT ON THE ARBITRATOR’S AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION IN ACCORDANCE WITH THE AGREEMENT.

LIMITATIONS PERIOD. ANY CLAIM BROUGHT IN ARBITRATION MUST BE BROUGHT WITHIN THE TIME PERIOD OUTLINED IN ANY STATUTE OF LIMITATIONS THAT, BUT FOR THE AGREEMENT TO ARBITRATE, WOULD APPLY TO THE CLAIMS ASSERTED IN ANY ARBITRATION PROCEEDING.

ATTORNEYS’ FEES. You agree that in the event of any arbitration or litigation, each party will bear its costs and attorneys’ fees, regardless of who is deemed the prevailing party. The foregoing notwithstanding, if either party commences an action in a court of law or equity and the responding party successfully moves such court to compel arbitration, the party who drove for the order compelling arbitration shall be entitled to recover its reasonable costs and attorney’s fees incurred on the motion to compel from the other party.

PODALLIES CLIENT EXPECTATIONS

To ensure PodAllies can best serve its Client, meet Client’s expectations, and help the Client achieve success with the Client’s podcast, by engaging the services of PodAllies the Client acknowledges and agrees to abide by the following client expectations.

TIME REQUIREMENTS. The estimated time Client will need to spend to launch Client’s site within the first 8 weeks of service will be about 15-18 hours per show. Individual results may be much greater or much less, depending on the experience and ability of each individual client. To provide some guidance, here are some rough estimates to be considered:

• Kickoff call: 2 hours

• Set up equipment: 0.5 hours

• First PodUp podcast call with the Producer from which the trailer will be made: 1 hour

• Approve or give edits to cover art, logo, and website designs: 1-2 hours

• Record your first episode(s) for your podcast: 1 hour

• Record your intro and outro for your podcast: less than 1 hour

• Approve or give edits to video clips: 0.5 hours

• Approve or give edits to lead magnet concept: less than 1 hour

• Approve or give edits to lead magnet final design: 0.5 hours

• Approve or give edits to podcast description: less than 0.5 hours

• Approve or give edits on final video content before publishing: less than 1 hour

• Approve or give edits to potential guest list: 0.5 hours

• Meet with producer: 6 hours

The above referenced timelines are but a reference, and there is no guarantee that everything can be done in this time frame in order to launch within the initial 8 week timeline. However, if  Client does not respond and give feedback and/or approval in a timely manner (within 2 business days), or has a large number of edit requests, Client’s launch will in all likelihood be delayed. Even when launch is delayed, Client’s contractual obligations under the Agreement shall continue and will not be discounted.

MEETING WITH THE PRODUCER. You agree to meet with your Producer via video call at least two times per week until your site/show is launched, and then at least two times per month (or more if needed) in perpetuity thereafter. By mutual agreement the Producer and Client may modify such arrangements

TIMELY RESPONSES. Client agrees to respond to messages from PodAllies and approve or give edits within 2 business days or sooner of receiving notification via email, text, or phone call. If Client is unable to give us feedback and approval within 2 business days, the launch of Client’s site and or any published content will be delayed. TIMING OF SERVICES. PodAllies operates in two phases: Pre-launch and Launched. During Pre-Launch, Client is responsive to its PodAllies action items and its twice-weekly meetings with its Producer. PodAllies does not guarantee launch within 8 weeks, but will strive to make this happen for each client. During the Pre-launch phase, all parties should be focused on getting all the templates, first episodes, website, social channels, and other elements ready for launch. Once Clien’s show is launched, Client’s contracted monthly episode allotment begins. Episodes do not accrue during the Pre-Launch phase. After launch, should Client’s contracted for number of episodes shall not be accrued or “banked,” but must be used in their allotted month or lost. Client shall not be given credit for episodes not published during the Pre-launch phase, or which Client does not utilize in their allotted month. To fulfill its contractual obligation, PodAllies require that Client deliver to PodAllies all needed recordings and images no less than TWO weeks before the desired publication date. If Client does not provide the required content to PodAllies in a manner mutually agreed upon by this deadline, PodAllies will have satisfied their part of the episode agreement for that episode.  PodAllies shall not be held liable for content not published when that content was not received before the two week deadline. PodAllies commits to giving Clients episodes back for review, edits, and approvals ONE week before the publishing date, giving Client time to review and give approval. PodAllies requires approvals to be given in writing at least TWO business days before publication.  If Client requires a longer approval process, due to guest approvals, no less than one week to this timeline must be added and agreed to by PodAllies.All approvals must be in writing. Once an episode is published, PodAllies shall not be required to perform any further edits or modifications thereto.

Once PodAllies has completed Client’s website, template designs, trailers and first episode, and each has been approved by Client, PodAllies may launch the website and related services without further approval of Client.

PodAllies strongly encourages clients to record episodes in batches, as it takes less time and allows clients to get ahead. To batch record, PodAllies recommends that clients schedule 3-4 hours once a month, where they can do back-to-back recordings.  In one afternoon, clients can have 4-5 episodes completed.

BOOKING SERVICES. If Client contracts with PodAllies to do booking services, Client must provide PodAllies access to their Calendly (or a similar calendar booking tool) and their LinkedIn accounts. Without access to these technologies, PodAllies cannot provide such services. At times, new podcasters only want guests who are large influencers. The reality is that large influencers usually will not accept such requests. Podcasters will usually need to interview influencers of similar size and influence at the beginning. Further, when a show is very small, it is a lot harder to find guests. In such early stages, most invited guests ignore such invitations. In order to be successful, PodAllies will provide Client with a large list of potential guests, and the Client needs to select at least 200 guests (hopefully a lot more) that Client is okay with PodAllies inviting onto the show. PodAllies cannot guarantee acceptance by any single person but can only make recommendations and invitations. If Client’s niche of guests is too small, if Client does not provide LinkedIn access for booking, if Client does not approve enough guests, if Client does not provide an online calendar booking system link (like Calendly) with sufficient availability, if Client is too narrow or turns down, if Client regularly reschedules guests, or if Client is requesting guests that PodAllies cannot book with a reasonable amount of effort, then PodAllies may elect to terminate its booking services without prior notice to Client.

PRODUCTION. PodAllies will provide as many reasonably requested revisions as needed to ensure Client’s satisfaction with deliverables before final approval. However, Client acknowledges that multiple revision requests may delay the publication schedule. Any delays resulting from Client's revision requests shall not be attributed to PodAllies and will not constitute a failure by PodAllies to deliver contracted episodes within the monthly time frame. PodAllies will revise cover art, as needed and requested, on a quarterly basis

QUALITY REVIEW & APPROVAL. All deliverables are subject to PodAllies' standard quality review process. Client is responsible for reviewing and approving final deliverables before publication. Client agrees not to unreasonably withhold approval or delay publication for any reason.

BUSINESS CONTINUITY. In the event of key personnel changes at PodAllies, PodAllies will make reasonable efforts to ensure continuity of services. However, PodAllies does not guarantee that specific team members will remain assigned to Client's account throughout the entire Term. PodAllies works as a team and the Client’s work is completed by a full team.

RESPECT. PodAllies commits to always communicate with and treat the Client with respect. In turn, Client commits to always do the same.

MONTHLY FEEDBACK. Each month, when PodAllies sends the Client a quick survey to rate and review PodAllies' services, Client agrees to provide feedback within 2 business days so that PodAllies has the information it needs to improve.

HOSTING AND RELATED SERVICES

 SUPPLEMENTAL TERMS OF SERVICE

The below listed Terms of Service pertain to hosting services and other related services offered by PodUp and supplement the above stated Terms of Service. Should any conflict exist between the Hosting and related Services Supplemental Terms of Service and the general Terms and Conditions of Service Stated above, the specific shall govern over the general

1. Hosting Service Terms.

The Hosting Service Terms below govern your use of PodUp’s hosting services (hereinafter simply the “Services”). Capitalized terms used in these Hosting Service Terms but not defined below are defined above in the PodUp’s Terms and Conditions of Service, which is incorporated herein by this reference, or other agreement with us governing your use of the Services (collectively the “Agreement”). For purposes of these Hosting Service Terms, “Your Content” includes any content provided by you, including, but not limited to “Company Content” and any “Customer Content,” and “PodUp Content” includes any and all content of Service provided by PodUp INC. (“PodUp”), its subsidiaries and/or business owned, controlled or operated by PodUp.

1.1. You may not transfer outside the Services any software (including related documentation) you obtain from us or third-party licensors in connection with the Services without specific authorization to do so.

1.2. You must comply with current technical documentation applicable to the Services (including applicable user, admin, and developer guides) as posted from time to time. 

1.3. You will provide information or other materials related to Your Content (including copies of any client-side applications) as reasonably requested by us to verify your compliance with the Agreement. You will reasonably cooperate with us to identify the source of any problem with the Services that we reasonably believe may be attributable to Your Content or any end user materials that you control.

1.4. In connection with your use of the Services, you are responsible for maintaining licenses and adhering to the license terms of any software you run. If we reasonably believe any of Your Content violates the law, infringes or misappropriates the rights of any third-party, or otherwise violates a material term of the Agreement (including the Terms and Conditions of Service) (“Prohibited Content”), we will notify you of the Prohibited Content and may request that such content be removed from the Services. If you do not remove or disable access to the Prohibited Content within 2 business days of our notice, we may remove or disable access to the Prohibited Content or suspend the Services to the extent we are not able to remove or disable access to the Prohibited Content. Notwithstanding the foregoing, we may remove or disable access to any Prohibited Content without prior notice in connection with any Prohibited Content, where the content may disrupt or threaten the Services or in accordance with applicable law or any judicial, regulatory or other governmental order or request. In the event that we remove Your Content without prior notice, we will provide prompt notice to you unless prohibited by law. We reserve the right to terminate the accounts of infringers as appropriate.

1.5. You will ensure that all information you provide to us via the PodUp Site (e.g., information provided in connection with your registration for the Services, requests for increased usage limits) is accurate, complete, and not misleading.

1.6. From time to time, we may apply upgrades, patches, bug fixes, or other maintenance to the Services and PodUp Content (“Maintenance”). We agree to use reasonable efforts to provide you with prior notice of any scheduled Maintenance (except for emergency Maintenance), and you agree to use reasonable efforts to comply with any Maintenance requirements that we notify you about.

1.7. When you use a Service, you may be able to use or be required to use one or more other services (each, an “Associated Service”), and when you use an Associated Service, you are subject to the terms and fees that apply to that Associated Service.

1.8. If you process the personal data of End Users or other identifiable individuals in your use of a Service, you are responsible for providing legally adequate privacy notices and obtaining necessary consents for the processing of such data. You represent to us that you have provided all necessary privacy notices and obtained all necessary consents. You are responsible for processing such data in accordance with applicable law.

1.9. These Hosting Service Terms incorporate the PodUp CCPA Terms (“CCPA Terms”), when the CCPA applies to your use of the PodUp Services to process Personal Information (as defined in the CCPA Terms).

1.10. Following closure of your PodUp account, we will delete Your Content in accordance with the technical documentation applicable to the Services.

1.11. We will not use Individualized Usage Data or Your Content to compete with your products and services. “Individualized Usage Data” means data about your use of the Services that are specifically identified with your PodUp account.

1.12. We may use information about how you use and interact with the Services to improve those Services.

1.13. Information included in resource identifiers, metadata tags, access controls, rules, usage policies, permissions, and similar items related to the management of PodUp resources does not constitute Your Content. PodUp recommends that you do not include personally identifying, confidential, or sensitive information in these items.

1.14. Service Level Agreement. This Service Level Agreement ("SLA") is a policy governing the use of PodUp’s Hosting Services and applies separately to each account using the Services.  PodUp does not guarantee any uptime percentages. Instead, PodUp provides a Service Commitment.

1.14.1. Service Commitment. PodUp will use commercially reasonable efforts to make the Services available with a monthly uptime percentage, during any monthly billing cycle, of at least 95.0%. In the event PodUp does not meet this Service Commitment, you may notify PodUp of any deficiencies, and where appropriate, in PodUp’s sole and absolute discretion, an appropriate non-refundable credit will be given that can be used as an offset for use of future Services. This is your sole and only remedy for PodUp’s failure to fulfill its Service Commitment. 

1.14.2. Service Interruption. Should any of the Services become interrupted due to a failure or fault of the Services, you agree to notify PodUp immediately of the same. PodUp will have up to twenty-four (24) hours in which to respond and up to five (5) business days in which to provide a resolution, but only insofar as the failure or fault is a result of the Services provided by PodUp and not you or a third-party.  

2. Trials and Betas.

2.1. This Section describes the additional terms and conditions under which you may (a) access and use certain features, technologies, and services made available to you by PodUp that are not yet generally available, including, but not limited to, any products, services, or features labeled “Trial,” “beta,” “preview,” “pre-release,” “experimental,” or anything similar, and any related PodUp Content (each, a “Beta Service”) or (b) access and use Services and any related PodUp Content available in PodUp regions that are not generally available, including, but not limited to, any PodUp regions identified by PodUp as “trial,” “beta,” “preview,” “pre-release,” “experimental,” or anything similar (each, a “Beta Region”).

2.2. You must comply with all terms related to any Beta Service or Beta Region as posted on the PodUp Site or otherwise made available to you, including orally. PodUp may add or modify terms, including lowering or raising any usage limits, related to access to or use of any Beta Services or Beta Regions at any time. Service Level Agreements do not apply to Beta Services or Beta Regions.

2.3. You may provide PodUp with information relating to your access, use, testing, or evaluation of Beta Services or Beta Regions, including observations or information regarding the performance, features, and functionality of Beta Services or Beta Regions (“Test Observations”). PodUp will own and may use and evaluate all Test Observations for its own purposes. You will not use any Test Observations except for your internal evaluation purposes of any Beta Service or Beta Region.

2.4. PodUp may suspend or terminate your access to or use of any Beta Service or Beta Region at any time. Your access to and use of each Beta Service and Beta Region will automatically terminate upon the release of a generally available version of the applicable Beta Service or Beta Region or upon notice of termination by PodUp. Notwithstanding anything to the contrary in the Agreement, after suspension or termination of your access to or use of any Beta Service or Beta Region for any reason, (a) you will not have any further right to access or use the applicable Beta Service or Beta Region, and (b) Your Content used in the applicable Beta Service or Beta Region may be deleted or inaccessible.

2.5. Test Observations, Suggestions concerning a Beta Service or Beta Region, and any other information about or involving (including the existence of) any Beta Service or Beta Region are considered PodUp Confidential Information.

3. Ownership of Domain Names and SSL Certificates.

You must own or have all necessary rights to use any domain name or SSL certificate that you use in conjunction with the Services. You are solely responsible for the renewal, security, and proper configuration of any SSL certificates that you provide for use with the Services, including any disclosure of your SSL certificates to third parties.

4. PodUp Equipment.

4.1. Equipment. PodUp may make equipment available to you to support your use of the PodUp Service (the “Equipment”). PodUp or its affiliates maintain all rights in the Equipment and is not selling, renting, leasing, or transferring any ownership, intellectual or other rights in the Equipment to you. You will not, and will not purport to, assign, grant, or transfer the Equipment or any interest in the Equipment to any individual or entity, and any such purported assignment, grant or transfer is void.

4.2. Facility Assessment. You will ensure that, at all times, the facility at which the Equipment is located (the “Designated Facility”) meets the minimum requirements necessary to support the installation, maintenance, use, and removal of the Equipment as described here and otherwise as described in any technical documentation or indicated to you during the ordering and installation process.

4.3. Delivery and Use. You will ensure that you have all necessary rights, certifications, and license for the delivery, installation, maintenance, use, and removal of the Equipment at the Designated Facility. You are responsible for any damage to the Equipment while it is at the Designated Facility, unless caused by PodUp. PodUp may terminate your use of the Services and remove the Equipment if you breach these terms or the terms of this Agreement.

4.4. Access to Equipment. You will give personnel designated by PodUp prompt and reasonable access to the Designated Facility as necessary to deliver, install, inspect, maintain, and remove the Equipment. You will not require PodUp personnel to sign, accept, or otherwise agree to any documentation as a condition of accessing the Designated Facility, and you agree that the terms of any such documentation are void even if signed by PodUp personnel. You will ensure that no one accesses, moves, or repairs the Equipment other than (i) personnel designated by PodUp(ii) as permitted in writing by PodUp in connection with the maintenance of Equipment, or (iii) as necessary due to a situation involving imminent injury, damage to property, or an active fire alarm system. You will ensure that no one modifies, alters, reverse engineers, or tampers with the Equipment. You acknowledge that the Equipment may be equipped with tamper monitoring.

4.5. PodUp Support. You will remain enrolled in one of PodUp’s SAS Services during the entire period of your use of the Equipment. As applicable, PodUp may provide you support for use of the Equipment, but is not required to do so and does not warrant or guarantee that it will do so.

4.6. Services/SLAs/Security. The Hosting Service Terms for any Services that run locally on PodUp Equipment are subject to the same Hosting Service Terms of this Agreement. There are inherent differences between Services running locally on PodUp Equipment from those Services running at PodUp operated facilities because the Equipment is physically located at the Designated Facility where you are responsible for physical security and access controls, as well as all power, networking, and environmental conditions. Due to these differences, any PodUp commitments in the Agreement that depend on PodUp’s operation of such physical security and access controls, or power, networking, and environmental conditions, do not apply to PodUp Equipment or any Services running locally on PodUp Equipment.

4.7. PodUp Equipment Installation, Use, and Removal. You are responsible for the installation, use, and removal of the PodUp Equipment at the Designated Facility and returning the Equipment to PodUp as described in the Equipment technical documentation or as otherwise indicated to you during the ordering process. In addition to other rights and remedies PodUp may have under the Agreement, PodUp may charge you a lost device fee if the Equipment is lost between when it is first in your possession and when the carrier accepts the Equipment for delivery back to PodUp. You must notify and obtain PodUp’s consent before moving the Equipment from the Designated Facility.

5. Microsoft Software.

5.1. In conjunction with the Services, you may be allowed to use certain software (including related documentation) developed and owned by Microsoft Corporation or its licensors (collectively, the “Microsoft Software”).

5.1.1. If you use the Microsoft Software, Microsoft and its licensors require that you agree to these additional terms and conditions:

The Microsoft Software is neither sold nor distributed to you, and you may use it solely in conjunction with the Services.

You may not transfer or use the Microsoft Software outside the Services.

You may not remove, modify, or obscure any copyright, trademark, or other proprietary rights notices that are contained in or on the Microsoft Software.

You may not reverse engineer, decompile, or disassemble the Microsoft Software, except to the extent expressly permitted by applicable law.

Microsoft disclaims, to the extent permitted by applicable law, all warranties by Microsoft and any liability by Microsoft or its suppliers for any damages, whether direct, indirect, or consequential, arising from the Services.

Microsoft is not responsible for providing any support in connection with the Services. Do not contact Microsoft for support.

You are not granted any right to use the Microsoft Software in any application controlling aircraft or other modes of human mass transportation, nuclear or chemical facilities, life support systems, implantable medical equipment, motor vehicles, weaponry systems, or any similar scenario (collectively, “High Risk Use”). Microsoft and its suppliers disclaim any express or implied warranty of fitness for High Risk Use. High Risk Use does not include utilization of the Microsoft Software for administrative purposes, to store configuration data, engineering and/or configuration tools, or other non-control applications, the failure of which would not result in death, personal injury, or severe physical or environmental damage. These non-controlling applications may communicate with the applications that perform the control, but must not be directly or indirectly responsible for the control function.

Microsoft is an intended third-party beneficiary of this Section 5.1.1, with the right to enforce its provisions.

5.1.2. For any instance running Microsoft Software (each, a “Microsoft Instance”), you may not use nesting, container, or similar technologies to sell or resell multiple instances, portions of an instance, or containers running within the Microsoft Instance, unless (a) you are the ultimate end user of the Microsoft Instance, (b) you have supplemented the Microsoft Instance with your own applications, or (c) you have added primary and significant functionality to the Microsoft Instance.

5.1.3. SQL Server Web Edition may be used only to support public and Internet accessible Web pages, Web sites, Web applications, or Web services. It may not be used to support line of business applications (e.g., Customer Relationship Management, Enterprise Resource Management, and other similar applications).

6. Oracle Software. 

“License Included”. As part of the Services, you may be allowed to use certain software (including related documentation) described on the PodUp Site developed and owned by Oracle America, Inc. or its affiliates (“Oracle”) and Oracle’s licensors (collectively, the “Oracle Software”). If you choose to use the Oracle Software and do not already have a license from Oracle for that Oracle Software, Oracle and its licensors require that you agree to these additional terms and conditions:

Oracle or its licensors retains all ownership and intellectual property rights in the Oracle Software, and title to the Oracle Software does not transfer to you or any third-party by virtue of this Agreement.

The Oracle Software is subject to a restricted license and may only be used in connection with the Services, and only by the individual or legal entity that entered into the Agreement.

You may only use the Oracle Software for your internal business operations and in accordance with the Agreement. You may permit agents or contractors (including outsourcers) to use the Oracle Software on your behalf for the purposes set forth in, and subject to, the Agreement, provided you are responsible for the agent’s, contractor’s and outsourcer’s compliance with the Agreement in connection with such use.

You may not: assign, grant, or transfer the Oracle Software or any interest in the Oracle Software to another individual or entity, and if you purport to grant a security interest in the Oracle Software, the secured party will have no right to use or transfer the Oracle Software; use the Oracle Software for rental, timesharing, subscription services, hosting, or outsourcing; remove or modify any notice of Oracle’s or its licensors’ proprietary rights; make the Oracle Software available in any manner to any third-party for use in the third-party’s business operations; duplicate, reverse engineer (unless required by law for interoperability), disassemble or decompile the Oracle Software (including by reviewing data structures or similar materials produced by the Oracle Software); or publish any results of benchmark tests run on the Oracle Software.

Third-party technology that may be appropriate or necessary for use with some Oracle Software is specified in the related documentation, and that third-party technology is licensed to you only for use with the Services and under the terms of the third-party license agreement specified in the documentation, not this Agreement.

To the extent permitted by applicable law, Oracle disclaims any liability for any damages, whether direct, indirect, incidental, special, punitive or consequential, and any loss of profits, revenue, data or data use, arising from your use of the Oracle Software.

Notwithstanding anything to the contrary elsewhere in the Agreement, Oracle is an intended third-party beneficiary of the Agreement, but solely with respect to this Section 6 of these Service Terms.

The Uniform Computer Information Transactions Act does not apply to your use of the Oracle Software.

Upon any termination of the Agreement, you must discontinue use of the Oracle Software and any related documentation.

7. Third-party Software.  

In conjunction with the Services, you may be allowed to use certain software (including related support, maintenance, and documentation) developed, owned, or provided by third parties or their licensors. Use of third-party software is subject to these additional terms and conditions:

By using any third-party software, you agree to be bound by their terms and conditions, if any.

To the fullest extent permissible by law, you agree that third-party software providers can and may disclaim any and all: (i) warranties; and (ii) liability for any damages, whether direct, indirect, incidental, special, punitive or consequential, and any loss of profits, revenue, data or data use, arising from use of any such software.

8. Pricing.

8.1. Pricing shall be as set forth on the pricing page. We may change pricing at any time, but price changes will not apply to previously designated Services. If a third-party such as Microsoft increases its license fees, we may make a corresponding increase to the per-hour usage rate (or institute a corresponding per-hour usage rate). If this happens, you may: (a) continue to use your Service with the new per-hour usage price; (b) convert your Service to another plan with PodUp; or (c) terminate your Service.

8.2. We may terminate any Service at any time, and Service plans are non-transferable and non-refundable.  

8.3 As part of providing third-party services, PodUp may charge you a fee for providing such services, or may be paid a fee from the third-party service provider. Such fees may be incorporated into the cost of any third-party services provided, without breakdown or further disclosure to you by PodUp or from the third-party service provider.

9.  Taxes.  

Sellers are responsible for the calculation, validation, and payment of any and all sales, use, excise, import, export, value added, withholding, and other taxes and duties assessed, incurred, or required to be collected or paid for any reason in connection with any transaction. PodUp is not responsible for determining whether any taxes apply to any transaction or collecting or remitting taxes to any taxing authority with respect to any transaction, or for reporting any information (including the payment of taxes) with respect to any transaction. You agree to indemnify and hold harmless PodUp and its affiliates against any claim or demand for payment of any taxes imposed in connection with any transaction, and for any fines, penalties, or similar charges imposed as a result of your failure to collect, remit, or report any taxes in connection with any transaction.

10. Usage Monitoring. 

We may collect and store certain information for the Services you use and monitor such usages as CPU utilization, data transfer, and disk usage and activity (collectively, “Data”). Data may be used by PodUp to maintain and provide the Services (including development and improvement of the Services).

11. Telemarketing and Communications. 

11.1. You are responsible for complying with legal requirements related to unsolicited or unwanted communications, including without limitation, the Telephone Consumer Protection Act (TCPA), the FTC’s Telemarketing Sales Rule, and the EU e-Privacy Directive, or any other similar telemarketing law.

11.2. We may change, discontinue, or deprecate support for a third-party push notification platform at any time.

11.3. Prohibited Conduct. By use of the Services, you agree that you will not: 

Transmit any material that contains viruses, Trojan horses, worms, or any other malicious or harmful programs.

Offer or purport to offer any Emergency Services. “Emergency Services” means services that allow a user to connect with emergency services personnel or public safety answering points, such as 911 services.

Materially violate or facilitate the material violation of any local or foreign law, rule, regulation, or order, including PodUp’s regarding the transmission of data or software.

Transmit material that is sexually explicit, relates to “adult services”, or contains sensitive financial or identifying information (such as social security numbers).

Resell, sublicense, or timeshare the Services, or use them on behalf of anonymous or other third parties.

Use the Services in hazardous environments (such as operation of nuclear facilities, aircraft navigation, or any other use that may result in foreseeable risk of injury, death, or destruction of property).

Transmit material that is lewd or offensive to the reasonable person, or that promotes gambling or addiction of any form.

11.4.  From time to time, telecommunication providers may change or modify their rules, requirements, and policies (collectively “Carrier Policies”). We will make reasonable efforts to notify you of changes to Carrier Policies through, for example, email or technical documentation. Nonetheless, you are responsible for complying with all Carrier Policies that apply to your use of the Services.

12. Identity And Access Management (IAM).

12.1. We may change user credentials created by you using IAM if we determine in our sole discretion that a change is necessary for the protection of the Services and/or your PodUp account and resources, and we will promptly notify you of any such change.

12.2. We may change, discontinue, or deprecate support for any third-party identity provider at any time without prior notice.

13. Domain Name Systems.

13.1. You may not subscribe to the Services for a domain that you do not own or have authority over.

13.2. All Domain Name System (DNS) records (other than Private DNS records) used in connection with the Services may be made publicly available by PodUpand PodUp will have no liability for disclosure of those DNS records.

14. URLs.

14.1. PodUp may reject or modify any URL that violates the intellectual property rights any third-party or violates the Terms and Conditions of Service.

14.2. If you stop using the Services at any time, any portion of the URL used in connection with the Services may no longer be available to you and may be used by another PodUp customer

15. PodUp Email Service (SPES).

15.1. Like many email service providers, to increase the security and reliability of email you send, attempt to send, or receive using SPES (“SPES Email”), we (or our third-party providers) may, but are not required to, store and scan your SPES Email and Your Content included in SPES Email to protect you and SPES by preventing and blocking “spam” e-mails, viruses and spyware, and other harmful or unwanted items from being sent and received over SPES.

15.2. We may suspend or terminate your access to SPES, or block or decline to send or receive any SPES Email, if we determine that:

our scan of SPES Email or Your Content included in SPES Email reveals abusive or low-quality email (such as “spam”),

SPES Email bounces back to us or we receive abuse complaints (including complaints from third parties) in connection with your SPES Email, or the source or Return Path email address you have provided us for “address bounces” or complaints is not successfully receiving email.

15.3. If your SPES Emails are blocked, delayed, or prevented from delivery by reasons outside of our control, your payment obligations continue.

15.4. You are solely responsible for ensuring any emails you or your End Users send using SPES comply with the CAN-SPAM Act and all other applicable law. You agree that PodUp is not the “sender” of any emails you or your End Users send using SPES as defined in the CAN-SPAM Act and all other applicable to PodUp.

15.5. PodUp may provide filtering services designed to filter unwanted emails, such as spam, phishing emails, and email infected with viruses. You acknowledge that the technological limitations of the filtering service will likely result in the capture of some legitimate emails and the failure to capture some unwanted emails, including email infected with viruses.

15.6. Your email mail domain and End Users’ accounts may be blocked, delayed, or prevented from being delivered by destination email servers and other reasons outside of our control. Your payment obligations continue regardless of whether delivery of your emails is prevented, delayed, or blocked.

15.7. You agree not to use SPES for sending:

Bulk emails, such as mass marketing emails

Unsolicited and unwanted emails

Phishing emails

15.8. SPES may log and use information such as server hostnames, IP addresses, timestamps, mail queue file identifiers, and spam filtering information for the purpose of troubleshooting or improving SPES.

15.9. If your use of SPES is terminated, we may delete your data and your End Users’ mailboxes.

16. PodUp Protections.

16.1. Except to the extent Content is provided to you under a separate license that expressly states otherwise, neither you nor any End User may, or may attempt to, (a) modify, alter, tamper with, repair, or otherwise create derivative works of any Content or Services, (b) reverse engineer, disassemble, or decompile the Content or Services or apply any other process or procedure to derive the source code of any software included in the Content or Services, (c) resell or sublicense the Content or Services, (d) transfer Content outside the Services without specific authorization to do so, or (e) tamper with or circumvent any controls or make unauthorized copies of the Content or Services.

16.2. PodUp may stop providing PodUp Services and/or Content (or any features of or listings within PodUp), without prior notice to you. In addition, PodUp may disable or remove Services and/or Content you have purchased from PodUp or elsewhere, if PodUp determines that the Services and/or Content may violate any Policies or any other regulations, policies, of PodUp.

16.3. To the extent authorized by the respective third-party providers via PodUpPodUp may disable access to or remove any Third-party Content you purchased or subscribed via PodUp in the event of overdue and uncollected payments.

16.4. Professional services offered via PodUp by third parties are subject to separate terms and conditions specified by the respective third-party. PodUp has no control over and makes no guarantees about such services. 

16.5. You are solely responsible for applying appropriate security measures to your assets and the data transmitted to and from your assets, including using encryption, firewalls, and other network security tools as appropriate, and not allowing unauthorized access to your data.

16.6. You represent and warrant that you own all right, title, and interest in, or have all necessary authority to permit use of, any data, Content and/or assets associated with your PodUp account, and you agree to provide to PodUpupon request, documentation demonstrating such ownership or authority. PodUp is not a party to any agreement you have or may enter into with any other individual or entity accessing or using the Services, any of Your Content, or any assets associated with your account. You are solely responsible for your separate relationship with any such individual or entity.

16.7. We may change, discontinue, or deprecate support for any third-party identity provider at any time without prior notice.

16.8. If no End User accounts associated with your PodUp account have registered any usage of the Services for several months, then we may delete the inactive End Users’ accounts after providing 30 days’ notice.

16.9. PodUp is the registrant of, and controls the DNS records for, all its domain names (“Domain Names”), including the use of PodUp Domain Names as a temporary parking page for your domain name. You do not acquire any rights in any such Domain Names. Termination or suspension of Customer’s PodUp account may result in the termination or suspension of Customer’s ability to use its previously assigned temporary Domain Names

17. Content And Data Deletion. 

We may delete, upon 30 days’ notice to you, any of Your Content and/or data uploaded to PodUp if it has not been run for more than six (6) months.

18. PodUp Certificate Manager.

18.1. By using PodUp Certificate Manager (“SPCM”) you authorize us and/or our affiliates to apply for and obtain publicly trusted SSL/TLS certificates (each, a “Certificate”) from certification authorities located in the United States, some of whom may be third parties, for the domain name you provide to us. By submitting a request for a Certificate, you certify that (1) you are the Domain Name Registrant; (2) you have control over the Fully-Qualified Domain Name; or (3) you have been granted authority by the Domain Name Registrant to authorize PodUp to apply for and obtain each Certificate. You acknowledge that, solely for purposes of obtaining the Certificate and for no other purposes, you are giving PodUp control over the Fully-Qualified Domain Name, and you approve of PodUp requesting the Certificate for the domain name. We may decline to provide you with a Certificate for any reason.

18.2. You agree that:

(i) All information you provide in connection with your use of Certificates is and will be accurate and complete information at all times (and you will promptly notify us if your information changes);

(ii) You will review and verify the Certificate for accuracy;

(iii) You may use a Certificate we provide to you solely on servers that are accessible as listed in the Certificate and will use the Certificate solely in compliance with all applicable Content and/or Services provided by PodUp;

(iv) You will promptly cease using a Certificate, and promptly notify us, in the event that any information in the Certificate is incorrect or inaccurate;

(v) You will promptly cease using a Certificate, and promptly notify us, if the private key associated with the Certificate is subject to a Key Compromise or the Certificate is otherwise subject to misuse;

(vi) You will promptly respond to PodUp’s instructions concerning Key Compromise or Certificate misuse;

(vii) You will not modify, sublicense, or create a derivative work of any Certificate (except as required to use the Certificate for its intended purpose) or Private Key;

(viii) You will not, in connection with use of the Certificate, upload or distribute any files or software that may damage the operation of another’s computer;

(ix) You will not make representations about or use a Certificate except as may explicitly allowed;

(x) You will not, in connection with use of the Certificate, impersonate or misrepresent your affiliation with any entity;

(xi) You will not permit an entity other than PodUp to control the Private Key matching the Public Key in the Certificate;

(xii) You will not use a Certificate to breach the confidence of a third-party or to send or receive unsolicited bulk correspondence; and

(xiii) You acknowledge that PodUp (or our applicable third-party contractor) may revoke a Certificate at any time, and you agree that you will cease using the Certificate immediately upon our notice of such revocation.

19. PodUp Professional Services.

19.1. “PodUp Professional Services” are advisory and consulting services that PodUp provides to its customers. PodUp Professional Services are “Services” for purposes of the Agreement, and may be provided by any of PodUp’s business entities or related entities, including, but not limited to, ShowPlatofrm, ShowAgency, ShowCoaching or ShowAcademy, as the case may be.

19.2. PodUp or any of its affiliates may enter into an agreement for Services with you to provide PodUp Professional Services. Each agreement or addendum, together with this Agreement, is intended by the parties as the final, complete, and exclusive terms of their agreement and supersedes all prior agreements and understandings (whether oral or written) between the parties with respect to the subject matter of that agreement or addendum.

19.3. PodUp will invoice you monthly for the PodUp Professional Services. Payments for PodUp Professional Services are not refundable.

19.4. PodUp does not provide legal or compliance advice. You are responsible for making your own assessment of whether your use of the Services meets applicable legal and regulatory requirements.

19.5. Other than Third-party Content, Content that PodUp provides as part of the PodUp Professional Services is PodUp Content. You are solely responsible for testing, deploying, maintaining and supporting Content provided or recommended by PodUp.

19.6. PodUp may develop Content consisting of either (a) documents and diagrams (“Documents”); (b) software (in source or object code form), sample code, or scripts (“Software”); or (c) audio or visual (“Shows”) for you as part of the PodUp Professional Services (such Documents, Software and Shows, “Developed Content”). Subject to any non- Disclosure agreement in effect between you and PodUpPodUp is not precluded from developing, using, or selling products or services that are similar to or related to the Developed Content. Any Developed Content provided to you by PodUp as part of the PodUp 

Professional Services is licensed under the following terms:  PodUp licenses any Developed Content to you for your sole and exclusive use within the Services.

19.7. Some Developed Content may include PodUp Content or Third-party Content provided under a separate license. In the event of a conflict between Section 19.6 above and any separate license, the separate license will control with respect to such PodUp Content or Third-party Content.

19.8. Any materials or information that you own or license from a third-party and provide to PodUp for the purposes of the PodUp Professional Services are Your Content. If you choose to provide access to Your Content to PodUpthen you will ensure that you have adequate rights and permissions to do so.

19.9. If there is a conflict between this Section 19 and any PodUp Services Addendum between you and PodUpthe terms of the PodUp Services Addendum will control, and references to “Implementation Services” in that addendum include PodUp Professional Services.

19.10. PodUp and its affiliates will handle any personal data relating to your personnel (“Personnel”) that is provided to PodUp or its affiliates in connection with an agreement or addendum in accordance with the handling practices described in the PodUp Privacy Notice. You will make the PodUp Privacy Notice available to any Personnel whose personal data you provide to PodUp or its affiliates.

20. PodUp Systems Manager.

20.1. Systems Manager may collect and transmit to PodUp information regarding your use of the Services, including shows, inventory items; parameters; configuration data (e.g., network and state configuration); telemetry and diagnostics data; update history and registry keys; resource groups; and patch metadata (“Systems Information”). Systems Information may be used by PodUp to operate and maintain (including to improve) the Services.

20.2. Certain features of the Services include functionality that allows notifications to be sent to a contact channel (e.g., telephone number, email address). Your use of these features instructs us to send notifications (e.g., SMS/voice messages/emails) to the contact channels entered in the applicable workflows and confirms that you are authorized to send such notifications. Carriers may charge for notifications sent or received in connection with these features.

21. PodUp Media Services.

21.1. The distribution of files created by PodUp Media Services may require that you obtain license rights from third parties, including owners or licensors of certain third-party audio and video formats. You are solely responsible for obtaining such licenses and paying any necessary royalties or fees.

21.2. In order to provide PodUp Media Services, we may request that you implement specific PodUp software updates and/or provide us with prompt and reasonable access to your PodUp Services. PodUp Media Services do not include installation, configuration, administration, performance, operation, error, fault or defect resolution or other support and maintenance (or any combination of any of the foregoing).

21.3. PodUp does not provide security, risk, governance, legal or compliance advice. You are responsible for making your own assessment of whether your use of the Services meets applicable legal and regulatory requirements. You are also solely responsible for carrying out any advice or recommendations we provide.  

21.4. Payments for PodUp Media Services are not refundable, and your sole remedy is for PodUp to re-perform the relevant PodUp Media Services, provided that you must notify us of any failure within 10 business days of the original date of delivery or performance. We will invoice you in the manner set forth on your agreement.

21.5. You are responsible for providing legally adequate privacy notices to End Users of your products or services that use PodUp Media Services and obtaining all necessary consents from such End Users.

22. Connecting To PodUp Services.

22.1. You and your End Users may only use the Services on devices owned or controlled by you and solely to access Your Content. Each End User may be permitted to use a limited number of devices or sessions in any calendar month.

22.2. As part of regular operations, PodUp may access your End Users’ devices that are provisioned as part of the Services setup to perform configurations, health checks, and diagnostics on a regular basis. During the performance of these tasks, PodUp will only retrieve performance, log data, and other information related to the operation and management of the Service.

23. PodUp Training.

23.1. “PodUp Training” means the training programs that PodUp provides in connection with the Services and includes instructor-led and self-paced digital classes, labs, and other training sessions and materials. PodUp Training is considered “Services” for purposes of the Agreement. References to “PodUp” in any Training Order or Order Confirmation for PodUp Training mean the PodUp contracting entity for the ordered PodUp Training, and no other PodUp entity will have any obligations for such ordered PodUp Training. 

23.2. The additional terms and conditions here apply to PodUp Training that is instructor led, in whole or in part, provided in the applicable jurisdictions

24. PodUp Certification.

“PodUp Certification” means you have completed and passed a program through which PodUp makes available professional certifications and other credentials in connection with the Services. The PodUp Certification is “Services” for purposes of the Agreement. To participate in the PodUp Certification program, you must agree to the Certification Program Agreement (“CPA”). To the extent there is a conflict between the Agreement and the CPA, the CPA controls.

25. PodUp And THE FCRA.

PodUp is not a consumer reporting agency as defined by the Fair Credit Reporting Act, 15 U.S.C. §1681 et seq. (“FCRA”), or the equivalent under similar laws. PodUp does not include or provide “consumer reports” as defined in the FCRA. You may not use PodUp to determine any person’s financial status, financial history, creditworthiness, or eligibility for insurance, housing, or employment.

26. PodUp Location Service.

26.1. PodUp does not currently provide location services; however, if you use a third-party service that provides location services, such as third-party geolocation service provider, you authorize PodUp to transmit your request parameters (e.g., location searches) to the Geolocation Provider for processing which may be outside of the PodUp region in which your request was made. 

26.2. PodUp may change, deprecate, or discontinue any use of third-party geolocation service at any time, with or without notice to you.

26.3. If you use geolocation service, you may not:

a. Scrape, systematically collect, or duplicate the data provided to you (e.g., map tiles, forward and reverse geocodes, routes, drive times/isochrones, and other data) (collectively, “Location Data”), including for the purpose of avoiding use of PodUp Services.

b. Use Location Data to create or offer a product or service with features that are similar to the services of the third-party providers, where such product or service does not contain substantial, independent value and features beyond the services.

c. Use, incorporate, modify, distribute, provide access to, or combine any Location Data in a manner that would subject the Location Data to open-source or open-database license terms that require any part of the Location Data to be disclosed to third parties, licensed to third parties for the purpose of making derivative works, or redistributed to third parties at no charge.

d. Store or cache Location Data, except (i) for geocoding and reverse-geocoding results (other than as prohibited in this Agreement) when you indicate the result will be stored in the API parameter or (ii) to comply with legal, regulatory, or reasonable internal record-keeping requirements.

e. Use Location Data to develop paper maps or an atlas (digital or otherwise) for purposes of sale or distribution to others.

f. Place your company name or marks, or any third-party advertisements, on or in the Location Data (e.g., on a map display).

26.4. You may not use any geolocation service for any hazardous, unsafe, or illegal activities, including, but not limited to, tracking individuals without their knowledge or permission, any use in, or association with, any hazardous environments or critical systems that may lead to serious bodily injury or death or cause environmental or property damage. You are solely responsible for all liability that may arise in connection with any such use.

26.5. If we determine you are using geolocation services in a manner intended to avoid incurring appropriate usage fees, we may suspend or terminate your access to, or limit your use of any Service.

26.6. You must pass through attribution for Location Data that you make available to others via your application or its product documentation. If any Location Data has attribution details attached or incorporated, you may not remove, modify, or obscure (or permit any End Users to remove, modify, or obscure) any copyright, trademark notice, restrictive legend, or other proprietary right notices supplied to you

27. PodUp Custom Applications.

27.1. If you request that PodUp use any software or service that is not expressly identified as supported in the PodUp Services (“Customer-Requested Configuration”), incorporation of any such software or service provided for such Customer-Requested Configuration will be treated as a “Beta Service” under these Service Terms. 

27.2. You represent and warrant to PodUp that the person requesting any Customer-Requested Configuration is authorized to make such requests and procure such Services on your behalf and with respect to such PodUp accounts. 

27.3. PodUp and its affiliates will not be liable to you for any damages arising from (a) PodUp’s actions taken pursuant to any instructions or requests that you provide or approve, (b) you not following an instruction or recommendation from PodUp(c) your delay or withholding of approval for PodUp to take a requested action, or (d) any change by you to the Services.

28. Misc.

28.1 You may not use PodUp or the Services to identify a person or associate such information with an identifiable person, unless otherwise permitted in writing by PodUpsuch individual, or by the applicable third-party provider.

28.2. Contributed Content, including issues, comments, and contributions to a third-party provider, may be viewed by others and are not confidential. Unless you enter into a license with other parties who have access to such Contributed Content specifying different terms, you grant each party who has access to the Contributed Content a nonexclusive, worldwide, irrevocable license to use, reproduce, prepare derivatives, distribute, perform, and display Contributed Content. You represent and warrant that you have all rights necessary to grant this license.

28.3. When an End User of your account deletes their account, their Contributed Content may be deleted from your account, from PodUpand from your Space. However, any such Contributed Content from such End User, including those associated with issues, comments, and Contributed Content, may continue to be utilized by PodUpas PodUp may elect in its sole and absolute discretion.

28.4. Investigation and Enforcement. We may investigate any suspected violation of this Agreement, and remove or disable access to any content or resource that violates this Agreement. You agree to cooperate with us to remedy any violation.

When determining whether there has been a violation of this Agreement, we may consider your ability and willingness to comply with this Agreement, including the policies and processes you have in place to prevent or identify and remove any prohibited content or activity.

28.5. Reporting of Violations To report any violation of this Agreement, please email us at support@PodUp.com.

29. Entire Agreement.

This Agreement is the parties’ entire agreement regarding its subject matter and supersedes any prior or contemporaneous agreements regarding its subject matter. In this Agreement, headings are for convenience only and “including” and similar terms are to be construed without limitation. This Agreement shall become effective as set forth herein and is not required to be executed by any party individually.