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 sites or services that link or incorporate 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.
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
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.
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.
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.
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).
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.
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.
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 PodUP, or 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.
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
YYou 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.
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.
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.
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 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.
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.
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.
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.
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.
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.
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.
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.
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.
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” 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.
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.
“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.
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.
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.
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.
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.
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.
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.
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.
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.
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 PodUP, notice 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.
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.
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.
1.14.3 Disclaimer. WITHOUT LIMITING ANY OTHER DISCLAIMERS HERIN, PodUP PROVIDES NO GUARANTEE OR WARRANTY OF UPTIME RELATED TO THE SERVICES. ACCORDINGLY, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, PodUP IS PROVIDING THE SERVICES “AS IS.” PodUP AND ITS AFFILIATES AND LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE REGARDING THE UPTIME OF THE SERVICES, INCLUDING ANY WARRANTY THAT THE SERVICES WILL BE FUNCTIONAL, UNINTERRUPTED, ERROR FREE, OR FREE OF HARMFUL COMPONENTS, OR THAT ANY CONTENT, INCLUDING YOUR CONTENT, WILL BE ACCESSIBLE, TRANSMITTED, SECURE OR NOT OTHERWISE LOST OR DAMAGED. EXCEPT TO THE EXTENT PROHIBITED BY LAW, PodUP AND ITS AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. PodUP’S AND ITS AFFILIATES’ AND LICENSORS’ AGGREGATE LIABILITY FOR ANY SERVICES WILL BE LIMITED TO THE AMOUNT YOU ACTUALLY PAY US UNDER THIS AGREEMENT FOR THE SERVICES THAT GAVE RISE TO THE CLAIM DURING THE TWO (2) MONTHS PRECEDING THE CLAIM.
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.
2.6. WITHOUT LIMITING ANY OTHER DISCLAIMERS IN THE AGREEMENT OR THE TERMS AND CONDITIONS OF SERVICE, BETA SERVICES AND BETA REGIONS ARE NOT READY FOR GENERAL COMMERCIAL RELEASE AND MAY CONTAIN BUGS, ERRORS, DEFECTS, OR HARMFUL COMPONENTS. ACCORDINGLY, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT OR THESE SERVICES TERMS, PodUP IS PROVIDING BETA SERVICES AND BETA REGIONS TO YOU “AS IS.” PodUP AND ITS AFFILIATES AND LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE REGARDING BETA SERVICES AND BETA REGIONS, INCLUDING ANY WARRANTY THAT THE BETA SERVICES AND BETA REGIONS WILL BECOME GENERALLY AVAILABLE, BE UNINTERRUPTED, ERROR FREE, OR FREE OF HARMFUL COMPONENTS, OR THAT ANY CONTENT, INCLUDING YOUR CONTENT, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. EXCEPT TO THE EXTENT PROHIBITED BY LAW, PodUP AND ITS AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. PodUP’S AND ITS AFFILIATES’ AND LICENSORS’ AGGREGATE LIABILITY FOR ANY BETA SERVICES AND BETA REGIONS WILL BE LIMITED TO THE AMOUNT YOU ACTUALLY PAY US UNDER THIS AGREEMENT FOR THE SERVICES THAT GAVE RISE TO THE CLAIM DURING THE TWO (2) MONTHS PRECEDING THE CLAIM.
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.
8.1. 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.
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 PodUP, and PodUP will have no liability for disclosure of those DNS records.
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
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 PodUP, PodUP 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 PodUP, upon 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 PodUP, PodUP 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 PodUP, then 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 PodUP, the 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.
28.1 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 PodUP, such 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 PodUP, and 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 PodUP, as 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.
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