PODCASTEZ SMART LAUNCH AGREEMENT & TERMS OF SERVICE

Smart Launch

 

This Podcast Creator Agreement dated today (the “Agreement”) is between you (the “PODCASTER” or “you”) and [Consultant] (the “Consultant” “we” or “us”) for the Smart Launch Course.

1. CONSULTING

The Smart Launch Course is a 6-session in-depth training course that includes: 

• 6 Training Sessions, 
• 1 Bonus “After Launch” Strategy Session, 
• Basic Launch & Publishing Plan, 
• Show Music, 
• Show Artwork, 
• 1 Trailer Recording Session, 
• 1 Publish-Ready Show Trailer, and 
• 30 Days FREE in Our Podcast Community.

1. You will provide us with necessary descriptive textual information and any links, graphics (and have rights to those graphics), information about subjects or any other materials or information related to the Trailer that you would like to provide or we reasonably request.

2 . SERVICES FEES & SUBSCRIPTION CHARGEBACKS

1. Services Fee. You paid a one-time (or two equal payments) promotional Services Fee for the Smart Launch Course that was applied to your service. Should you elect to upgrade your package or add additional services via the website (one-time or monthly), the upgrade difference will be billed to your credit card on file.
2. Transaction Fees. You agree to pay all fees applicable to your service and all other applicable fees including, but not limited to, fees relating to the processing of transactions related to and under your Consulting Service including, but not limited to, credit card processing fees and all fees relating to your purchase of any additional products or services (“Additional Services”) or Third-party Services (“Third-party Services”). Combined, the Services Fees, the Transaction Fees, and the Third-party Services are collectively referred to as Fees.

You must keep a valid credit card on file with us to pay for all incurred and recurring Fees. You authorize PodcastEZ or its third-party payment providers to charge your credit card, debit card, or financial institution account (herein “Payment Method”) for all charges to your accounts with PodcastEZ. PodcastEZ will charge applicable Fees to the credit card account that you authorize (“Authorized Credit Card”), and PodcastEZ will continue to charge the Authorized Credit Card (or any replacement card) for applicable Fees, including any and all outstanding fees, until the Services are terminated. All Fees are exclusive of applicable federal, state, international, local fees and taxes.

PodcastEZ is required to collect Washington State sales tax on all Course Sales. Please note that you may be required to pay sales tax and file a sales tax return for certain purchases made from PodcastEZ, even if your order does not include sales tax charges. Please consult your city, county and state sales tax authorities to determine whether you are required to pay sales tax on any purchases made from PodcastEZ.  If you are exempt from payment of such Taxes, you must provide us with an original certificate that satisfies applicable legal requirements attesting to tax-exempt status. Tax exemption will only apply from and after the date we receive such a certificate.

3. Cancellations & Chargebacks. We never want to lose a great customer and we are here to help you build a great Podcast Show. PodcastEZ does not provide refunds. Charges for Course Fees, Transaction Fees, and Additional Services will appear on credit card statements as follows: "Podcastez LLC”. You agree that, prior to contacting a credit card company in relation to charge disputes (“Chargeback”), you will first contact Podcastez LLC to verify the charges and the manner of billing. You agree that any Chargeback by a credit card company, for whatever reason, is a material breach of this Agreement. The cost for a Chargeback to Podcastez LLC is $35.00 and is a charge for which you agree to be jointly and severally liable to make Podcastez LLC whole.   You agree and acknowledge that Podcastez LLC may suspend your access to your account until all payment owed is brought current.  Your rights to, and control over these accounts and services, may be reinstated solely at the discretion of Podcastez LLC.

4. Other Services & Tools.  As your podcast consultant sees fit, they will make recommendations for services and tools to you that will enhance your podcasting production. PodcastEZ may or may not be compensated by the vendor of those products or services.

3 . OWNERSHIP, COPYRIGHTS & CREDITS

1. Copyright: You retain the ownership, copyrights and credits in your Work.
2. Name and likeness: You grant us the right to use your name, podcast name, podcast image, brand, on our website, PR, editorial, and promotion in our efforts to promote your podcast trailer and the PodcastEZ services platform. 

4 . TRAILER PRODUCTION & INCLUDED MEDIA

1. You will notify us of all distribution rights or deals that you have cleared for the distribution of the Work, such as music, performance, or literary rights clearances. You are responsible to ensure that all licenses are obtained and paid for and that PodcastEZ has copies of these available to us.
2. If appropriate to your Work, you will provide us with documents such as releases, clearances, permission forms, etc.
3. As a Podcast Creator and Show Host, you will be provided with a single Slack Channel to communicate with your PodcastEZ team.
4. Included Media: SHOW BRAND ARTWORK. PodcastEZ will create for you the cover image for your podcast show art that will appear in podcast directories for your show. The produced image allows for 2 revisions prior to acceptance.  SHOW MUSIC. As a PodcastEZ™ client, you will be able to select a music track that has a global use license and fits with the brand and needs of your podcast. Music is not a requirement in the production of a podcast, and it can be a hard process to decide on the right music track to use that you might like for intro, exits and segment transitions.

5 . INDEPENDENT CREATOR

You are an independent creator and not an employee of PodcastEZ. Nothing contained in this Agreement shall be interpreted to be inconsistent with this relationship. Accordingly, you are responsible for the payment of all income, social security and other self-employment taxes, insurances, and any and all other payments relating to your duties and obligations under this Agreement. Obviously, this Agreement does not create any association, partnership, joint venture, or agency relationship between you and us.

6 . WARRANTIES AND INDEMNIFICATION

1. You represent and warrant that:
   1. The Work is your own original work.
   2. The Work is factually accurate.
   3. The Work is not defamatory.
   4. The Work does not infringe on anyone’s intellectual property; privacy, or publicity rights, and does not plagiarize another’s work.
   5. If appropriate, that the subjects of the Work have assented to their participation and to the broadcast of their voices.
   6. If you include any material in the Work that is not original to you, you will notify us in advance, and assist us in obtaining any necessary clearances, rights, licenses or releases.
   7. The Work has not been previously published in any form, in whole or in part. If the Work (or any element contained in the Work) has been previously published or used in another way, you will disclose this to us prior to our acceptance of the work, and we may determine if we will waive the requirement that the Work be previously unpublished and accept the Work.
   8. You have the knowledge and authority to enter into this Agreement.

2. We shall indemnify you against claims, damages, liabilities, costs and expenses (including reasonable attorneys’ fees) that result from any unauthorized use of the Work by us or by our licensees, or from any breach of our representations, warranties or obligations
3. You shall indemnify us, including our sub‐licensees, employees, agents, and assignees against claims, damages, liabilities, costs and expenses (including reasonable attorneys’ fees) that result from any breach of your representations, warranties or obligations.
4. If a claim is made against either party arising out of the use of the Work, the other party agrees to cooperate fully, as needed, to defend against it.

7. WEBSITE AND COMMUNITY USE AND PARTICIPATION

        When you participate on our Website and Community, you are responsible for what you post. Although we will not screen all contributed content, we reserve the right to remove anything we deem inappropriate, without any possibility of recourse or redress on your part. Be aware that some users will rely on the content of your posts, messages, and other such content (collectively, the “posts”) as provided by you on our Website and Community. You, and not us, are responsible for your posts, and you hereby fully indemnify us from any claim we might receive from third-parties harmed by your posts.

        You agree that we may, without notice or liability, disclose to third-party securities or authorities any of your information or your content, monitor use of the Website and Community and monitor, review and retain your posts if we believe in good faith that such activity is reasonably necessary to ensure adherence to or enforce the Website and Community Terms, comply with any laws or regulations, respond to any allegation of illegal conduct or claimed violation of third party rights, or protect us or others.

        If we receive a complaint relating to the use of the Website and Community by you, you acknowledge and agree that we may, in our sole and absolute discretion and without notice or liability, investigate the complaint, restrict, suspend or terminate any service involved, or remove your content from our servers. 

Lawful Use

You will ensure that:

1.   You only use the Website and Community for lawful purposes, and
2.   If at any time you become aware of any violation, by any person or entity, of any part of these Terms and Conditions, you will immediately notify us and provide us with assistance, as requested, to stop or remedy such violation.

You are granted a non-exclusive, non-transferable, revocable license to access and use our Website and Community strictly in accordance with these terms of use. As a condition of your use of the Website and Community, you warrant to PodcastEZ that you will not use the Website and Community for any purpose, or sale of goods, that is unlawful or prohibited by these Terms. You may not use the Website and Community in any manner which could damage, disable, overburden, or impair the Website and Community or interfere with any other party's use and enjoyment of the Website and Community. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Website and Community.  

Prohibited Conduct

Without limiting the generality of any other restriction in these Terms and Conditions, you agree that you will not, in connection with the Website and Community, directly or indirectly do or permit any of the following:

1.   post, upload, reproduce, distribute or otherwise transmit any Content (defined below) that is unauthorized or unsolicited commercial communications, junk or bulk communications or other “spam” (whether or not using e-mail services, including instant messaging, blog or comment spam) or is otherwise duplicative or unsolicited, contains a virus, cancelbot, Trojan horse, worm or other harmful, disruptive or surreptitious component,
2.   is defamatory, infringing, or unlawful,
3.   is inappropriate, obscene, indecent materials or information without suitable or lawfully-required access controls (which controls will in no event be our responsibility),
4.   gives rise to civil liability, or otherwise violates the rights or assists others to violate the rights of us or any third party, such violations including engaging in copyright infringement, invasion of privacy, trademark infringement or defamation; or
5.   constitutes a criminal offense, or otherwise engages in or assists others to engage in any criminal offense, including communicating hatred, pyramid selling (does not extend to MLM), unauthorized use of a computer, mischief in relation to data, fraud, obscenity and child pornography; or
6.   engage in threats, harassment, intimidation, stalking or abuse or any conduct that violates the legal rights of others, including the rights of minors and rights relating to privacy and publicity;
7.   scan or probe another computer system, obstruct or bypass computer identification procedures or engage in unauthorized computer or network trespass without the express permission of the owners of such computer systems;
8.   forge headers or otherwise manipulate any protocols or identifiers used in any system or protocol in such a manner to disguise the origin of any data transmitted using the Website and Community;
9.   impersonate or falsely represent your association with any person, including a representative of us;
10. disrupt or threaten the integrity, operation or security of Website and Community, any computer or any Internet system;
11. disable or circumvent any access control or related process or procedure established with respect to the Website and Community;
12. sublicense, share, resell, reproduce, copy, distribute, redistribute, or exploit for any commercial purposes (except for your internal business purposes), any portion of, use of or access to, any Website and Community, except where expressly authorized by us; or
13. extract, gather, collect, or store personal information about others without their express consent.

Intellectual Property

All content included as part of the Service, such as text, graphics, logos, images, as well as the compilation thereof, and any software used on the Website and Community, is the property of PodcastEZ or its suppliers and partners and protected by copyright and other laws that protect intellectual property and proprietary rights. You agree to observe and abide by all copyright and other proprietary notices, legends or other restrictions contained in any such content and will not make any changes thereto.  

You will not modify, publish, transmit, reverse engineer, participate in the transfer or sale, create derivative works, or in any way exploit any of the content, in whole or in part, found on the Website and Community. PodcastEZ content is not for resale. Your use of the Website and Community does not entitle you to make any unauthorized use of any protected content, and in particular you will not delete or alter any proprietary rights or attribution notices in any content. You will use protected content solely for your personal use, and will make no other use of the content without the express written permission of PodcastEZ and the copyright owner. You agree that you do not acquire any ownership rights in any protected content. We do not grant you any licenses, express or implied, to the intellectual property of PodcastEZ or our licensors or partners except as expressly authorized by these Terms.

Termination/Access restriction

PodcastEZ reserves the right, in its sole discretion, to terminate your access to the Website and Community and the related services or any portion thereof at any time, without notice. To the maximum extent permitted by law, this agreement is governed by the laws of the State of Washington and you hereby consent to the exclusive jurisdiction and venue of courts in Washington in all disputes arising out of or relating to the use of the Website and Community. Use of the Website and Community is unauthorized in any jurisdiction that does not give effect to all provisions of these Terms, including, without limitation, this section.  

You agree that nothing in this Website and Community Terms of Use document constitutes a relationship that includes: sales agent, employee, joint venture, agency, partnership or franchise agreement. PodcastEZ's performance of this agreement is subject to existing laws and legal process, and nothing contained in this agreement is in derogation of PodcastEZ's right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Website and Community or information provided to or gathered by PodcastEZ with respect to such use. If any part of this agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the agreement shall continue in effect.  

8 . INTERNATIONAL USERS

 8.1      The PodcastEZ service is owned, operated and administered within the USA. If you access the PodcastEZ    service from a location outside the USA, you are responsible for compliance with all local laws and regulations.

9. GENERAL PROVISIONS

9.1  This Agreement represents our entire understanding relating to the subject matter of this Agreement and supersedes and replaces any previous documents, correspondence, conversations, or other written or oral understandings. This Agreement may be modified only in writing signed by the parties.

This Agreement shall be construed under the laws of the State of Washington, without regard to its conflicts of laws provisions.

Dispute Resolution

9.1.1  The parties will use their best efforts to informally resolve any disputes, claims and controversies                      arising out of or relating to this Agreement or its breach (a “Dispute”).

9.1.2 If a Dispute cannot be informally resolved, then the Dispute will be settled by binding arbitration in accordance with the then-­current Commercial Rules of the American Arbitration Association ("AAA"), and judgment upon the award entered by the arbitrator may be entered in any Court having jurisdiction. Costs of arbitration, including attorney's fees incurred in arbitration, as determined by the arbitrator, together with those incurred by the prevailing party in court enforcement of the arbitration award, must be paid to the prevailing party.

9.1.3  Arbitration will be conducted in Spokane, Washington and the award rendered in United States dollars.

9.1.4  If a party either dismisses or abandons his/her/its claim or counterclaim before the hearing, the other party will be deemed the "prevailing party" pursuant to this Agreement. Should both parties receive  judgment or award on their respective claims, the party in whose favor the larger judgment or award is rendered will be deemed the "prevailing party" pursuant to this Agreement.

9.2  No waiver of any term or condition of this Agreement shall be construed as a waiver of any other term or condition; nor shall any waiver of any default under this Agreement be construed as a waiver of any other default.

9.3 Neither party shall be in breach of this Agreement to the extent either party is unable to perform due to any     event of “force majeure” such as fire, earthquake, epidemic, war, strike, riot, and similar acts or events not within the control of either party. If this period exceeds [fifteen (15) days], either party may, by written notice to the other, terminate this Agreement.

9.4 Availability Of And Access To Services:

PodcastEZ will make every effort to provide continuous availability and access to Services. In the event that we are unable to provide access for reasons beyond our control, we will communicate the reasons for the outage and expected duration of the outage clearly and explicitly to our subscribed users.  These outages could be due to third parties that the Service depends on, such as, but not limited to Amazon AWS or other third-party service providers.  Also, while we will make commercially reasonable attempts to backup all Podcaster data, in the event of recovery from disaster, the Podcaster may have to reconfigure the Service to get it back to the state it was in before the outage.  PodcastEZ and its third-party service providers have implemented and maintain commercially reasonable technical and organizational security measures designed to meet the following objectives: (a) ensure the security and confidentiality of Podcaster data in PodcastEZ’s and/or its third-party service provider’s custody and control; (b) protect against anticipated threats or hazards to the security or integrity of Customer data; (c) protect against unauthorized access to or use of Customer data; (d) encrypt Customer’s Content and data during transmission by PodcastEZ and its third-party service providers and when being uploaded by Podcaster for use in connection with the Services using an https connection; and ensure that PodcastEZ’s return or disposal of Podcaster data is performed in a manner consistent with the foregoing.  However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures to access your data for improper purposes.  You acknowledge that there are risks inherent in Internet connectivity that could result in the loss of your privacy, confidential information and property.