Podbean-ad-terms

Last Updated: December 16, 2022

These Podbean Advertiser Terms (“Terms”) are between Podbean Tech Inc. (“Podbean”) and the entity that opens an advertiser account, accepts these Terms electronically and/or enters into an insertion order or other document (“IO”) that references these Terms (“Advertiser”). These Terms govern Advertiser’s use of and participation in the Podbean Podcast Ads Marketplace (“Ads Marketplace” or “Services”).

THESE TERMS REQUIRE USE OF BINDING INDIVIDUAL ARBITRATION TO RESOLVE DISPUTES RATHER THAN JURY TRIALS OR CLASS ACTIONS. Advertiser may opt out of the arbitration requirement by following the instructions in Section 12(F) below within 30 days of first accepting these Terms.

If Advertiser is using the Service or opening an account on the Service on behalf of a company, entity or organization, that company, entity or organization is the “Advertiser” under these Terms. In that case, the individual entering into these Terms represents and warrants that they are an authorized representative of Advertiser with the authority to bind Advertiser to these Terms.

For information about how we collect, use and disclose personal information, please refer to our Privacy Policy.

1. Services and Ads

The Services allow advertisers to place advertising (“Ads”) in third party podcasts and include features that assist Advertiser with campaign planning, management and targeting. By using the Services, Advertiser authorizes Podbean and its podcasters to place Ads in podcasts.

Advertiser is solely responsible for all Ads and campaigns, Ad trafficking and targeting, links within Ads, landing pages or other destinations to which Ads direct end users (including related URLs, waypoints, and redirects) and Advertiser’s services and products. Podbean or podcasters may reject or remove Ads, links or targeting at any time for any or no reason. Podbean may modify or cancel Services at any time.

Advertiser acknowledges and agrees that podcasts and all related content are provided by third party podcasters and that Podbean is not responsible for podcasts or related content.

Podbean may roll out additional features or services from time to time, which may require additional fees and terms and conditions as set forth in the user interface of the Services, an IO or a separate agreement between the parties.

As between the parties, Podbean’s records of impression counts and other metrics shall be determinative.

2. Use of Services

Advertiser is solely responsible for its use of the Services, safeguarding usernames and passwords and all activity and payments owed under its account. If Advertiser requests Podbean’s help to use the Services, Advertiser consents to the actions that Podbean performs on its behalf. Advertiser retains sole responsibility for such assisted use of the Services.

Use of the Services is subject to the Podbean Acceptable Use Policy at podbean.com/podbean-aup, the Podbean Partner Privacy Requirements at podbean.com/podbean-partner-privacy, and all other policies or requirements that Podbean or a podcaster makes available to Advertiser (“Policies”). All information provided in the Podbean interface is solely for the internal use of Advertiser (and clients, if applicable as described below). Advertiser will direct communications regarding podcasts only to Podbean.

Advertiser will not create targeting profiles or segments on the basis of the podcasts that a user has visited or the general interest area(s) covered by the podcast (e.g., Advertiser may not create an “ESPN Audience” segment based on any information obtained during a prior campaign on ESPN podcasts).

3. Advertiser Clients

If Advertiser is using the Services on behalf of its clients, Advertiser represents and warrants that it is authorized to act on behalf of such clients and has bound such clients to these Terms. All references to “Advertiser” in these Terms will also apply to such clients, as applicable. For the avoidance of doubt, Advertiser is responsible for fulfilling all obligations under these Terms. Podbean may, upon request of a client, share client-specific information with such client.

4. Make-Goods

If an IO includes a guaranteed number of impressions and Podbean fails to deliver the guaranteed number, Advertiser’s sole remedy is to make a claim during the 60 days following the guaranteed delivery end date (“Claim Period”). If Podbean confirms the accuracy of the claim, then, at Podbean’s reasonable discretion, Podbean will either (a) not charge Advertiser for the undelivered Ads, (b) provide advertising credits, which must be used within 90 days (“Use-By Date”), (c) place Ads in a position Podbean deems comparable within 60 days of Podbean’s confirmation of the accuracy of the claim or (d) extend the term of the campaign. Podbean cannot assure that any programmatic or auction-based Ads will be delivered and therefore make-goods do not apply to auction-based Ads.

5. Budgets and Payment

Advertisers are solely responsible for accurately establishing campaign budgets, monitoring impressions for campaigns/by podcast and modifying, pausing or cancelling campaigns as needed. Unless the parties agree to different pricing in writing (e.g., in an IO), advertising payments are calculated based on the CPM rate on the verified downloads in which the ads were served.

Advertisers will be required to authorize payment when setting up a campaign. Podbean does not handle payment directly or collect your information. All payments are processed by a third-party payment processor and Advertisers agree to their terms directly. Late payments may be assessed an interest charge at the rate of 1.5% per month (or the highest rate permitted by law, if less). For any late payment not disputed in good faith, Advertiser will also pay all reasonable expenses and legal fees Podbean incurs in collecting late payments. Podbean may, in its sole discretion, extend, revise or revoke credit at any time. Podbean is not obligated to deliver any Ads in excess of any credit limit.

If Podbean does not deliver Ads to any guaranteed destinations, then Advertiser’s sole remedy is to make a claim for advertising credits within the Claim Period, after which Podbean will issue the credits following claim validation which must be used by the Use-By Date. Advertiser understands that third parties may generate impressions or clicks on Advertiser’s Ads for prohibited or improper purposes and if that happens, Advertiser’s sole remedy is to make a claim for advertising credits within the Claim Period, after which Podbean will issue the credits following claim validation, which must be used by the Use-By Date.

TO THE FULLEST EXTENT PERMITTED BY LAW, ADVERTISER WAIVES ALL CLAIMS RELATING TO ANY SERVICE CHARGES UNLESS A CLAIM IS MADE WITHIN THIRTY DAYS OF THE APPLICABLE INVOICE DATE.

6. Taxes

All fees and other amounts due under this Agreement are exclusive of sales, service, use, business and any similar taxes (collectively, “Transaction Taxes”). Advertiser shall self-assess any applicable Transaction Taxes to the extent required or allowed under applicable law. In the event that Advertiser does not self-assess any such Transaction Taxes, Advertiser shall indemnify and hold harmless Podbean against such Transaction Taxes and any applicable interest or penalties. If self-assessment is not required or allowed and Podbean is required to charge applicable Transaction Taxes to Advertiser, Advertiser shall pay to Podbean the total amount due on Podbean’s invoice, including any Transaction Taxes, in accordance with the payment terms set forth in this Agreement. In the event that Podbean does not charge such Transaction Taxes at the time of initial invoicing, but the relevant government authority determines that Podbean should have charged such Transaction Taxes, Podbean shall charge to Advertiser, and Advertiser shall pay to Podbean, any such Transaction Taxes as soon as practicable after such determination.

7. Closing Accounts, Termination, Cancellation

Advertiser may close its account at any time using the Advertiser portal in the Services. Except at Podbean’s sole discretion, Advertiser’s account closure will not affect Advertiser’s obligations as to any minimum campaign term or minimum fees agreed in an IO. Podbean may terminate or suspend Advertiser’s account at any time upon notice, for any reason or no reason.

Unless an IO provides otherwise, either party may cancel any Ad at any time before the earlier of Ad auction or placement, but if Advertiser cancels an Ad after a commitment date provided by Podbean (e.g., a host-read ad campaign), then Advertiser is responsible for any cancellation fees communicated by Podbean to Advertiser, and the Ad may still be published.

Cancelled Ads will generally cease serving within 8 business hours or as described in a Policy or IO, and Advertiser remains obligated to pay all charges resulting from served Ads (e.g., fees based on conversion).

Advertiser must cancel a campaign (i) online through Advertiser’s account, if the functionality is available, (ii) if this functionality is not available, with notice to Podbean via email to Advertiser’s account representative, or (iii) if this functionality is not available and Advertiser does not have an account representative, with notice to Podbean via email to support@podbean.com. Advertiser will not be relieved of any payment obligations for Ads not submitted or submitted by Advertiser after the due date provided by Podbean.

8. Disclaimers

TO THE FULLEST EXTENT PERMITTED BY LAW:

  • PODBEAN AND PODCASTERS DISCLAIM ALL WARRANTIES, WHETHER IMPLIED, STATUTORY OR OTHERWISE, INCLUDING FOR NON-INFRINGEMENT, SATISFACTORY QUALITY, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, OR ARISING FROM ANY COURSE OF DEALING OR USAGE OF TRADE.
  • THE SERVICES AND PODCASTS ARE PROVIDED “AS IS,” “AS AVAILABLE” AND “WITH ALL FAULTS”. PODBEAN, ITS AFFILIATES, AND ITS PODCASTERS DO NOT MAKE ANY GUARANTEE IN CONNECTION WITH THE SERVICES OR SERVICE RESULTS. WITHOUT LIMITING THE FORGOING, PODBEAN DOES NOT GUARANTEE ANY RESPONSE TO THE ADS OR THAT ADS WILL BE HEARD/VIEWED BY ANY MINIMUM NUMBER OF USERS.

9. Limitation of Liability

EXCEPT FOR SECTION 10 AND ADVERTISER’S BREACH OF SECTION 2, TO THE FULLEST EXTENT PERMITTED BY LAW REGARDLESS OF THE THEORY OR TYPE OF CLAIM: (a) PODBEAN, ADVERTISER, AND THEIR RESPECTIVE AFFILIATES WILL NOT BE HELD LIABLE UNDER THESE TERMS OR ARISING OUT OF OR RELATED TO THESE TERMS FOR ANY DAMAGES OTHER THAN DIRECT DAMAGES, EVEN IF THE PARTY IS AWARE OR SHOULD KNOW THAT SUCH OTHER TYPES OF DAMAGES ARE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY; AND (b) OTHER THAN ADVERTISER’S PAYMENT OBLIGATIONS UNDER THESE TERMS, PODBEAN, ADVERTISER, AND THEIR RESPECTIVE AFFILIATES WILL NOT BE HELD LIABLE FOR DAMAGES UNDER THESE TERMS OR ARISING OUT OF OR RELATED TO PERFORMANCE OF THESE TERMS FOR ANY GIVEN EVENT OR SERIES OF CONNECTED EVENTS IN THE AGGREGATE OF MORE THAN THE AMOUNT PAYABLE TO PODBEAN BY ADVERTISER UNDER THE TERMS IN THE TWELVE MONTHS BEFORE THE DATE OF THE ACTIVITY FIRST GIVING RISE TO THE CLAIM.

10. Indemnification

Advertiser will defend, indemnify and hold harmless Podbean, podcasters and their respective agents, affiliates, and licensors against all claims, liabilities, damages, losses, costs, fees (including reasonable attorneys' fees and costs), and expenses relating to any third-party claim, allegation, investigation or legal proceeding to the extent arising out of or related to Advertiser’s breach of these Terms, any Ads and campaigns, Ad trafficking and targeting, links within Ads, landing pages or other destinations to which Ads direct end users (including related URLs, waypoints, and redirects) and Advertiser’s services and products. Podcasters are intended third-party beneficiaries of this Section.

11. Changes

Podbean may make non-material changes to these Terms at any time without notice and will make any material changes with advance notice. Changes will be posted at podbean.com/podbean-ad-terms. Your use of the Services following any changes will constitute your acceptance of such changes. If you do not wish to continue using the Services under the updated Terms, you may terminate your account.

Podbean may terminate or suspend Advertiser’s ability to participate in the Services at any time. In all cases, the running of any Advertiser campaigns after termination or suspension is in Podbean’s sole discretion.

12. Dispute Resolution Agreement

  • Arbitration of disputes. Podbean and Advertiser agree to arbitrate all disputes and claims that arise out of or relate in any way to the Services or these Terms. This agreement to arbitrate (“Dispute Resolution Agreement” or “Section 12”) is intended to be broadly interpreted and includes, for example:
    1. claims brought under any legal theory;
    2. claims that arose before Advertiser first accepted any version of these Terms containing an arbitration provision;
    3. claims that may arise after the termination of Advertiser’s use of the Services;
    4. claims brought by or against Podbean, Podbean affiliates and the respective officers, directors, employees, agents, predecessors, successors, and assigns of these entities;
    5. claims brought by or against Advertiser, the respective affiliates and parent companies of Advertiser, and the respective officers, directors, employees, agents, predecessors, successors, and assigns of these entities.

    This Dispute Resolution Agreement does not preclude any party from seeking an individualized preliminary injunction or temporary restraining order until a claim is arbitrated, or from bringing an individualized action in small claims court, in any court that has jurisdiction; provided that, as limited by Section 12(C) below, the arbitrator will have exclusive jurisdiction to finally resolve claims not within the jurisdiction of a small claims court. Nor does this Dispute Resolution Agreement bar any party from bringing issues to the attention of federal, state, or local agencies.

    Podbean and Advertiser agree that, by entering into this arbitration agreement, all parties are waiving their respective rights to a trial by jury or to participate in a class or representative action. The Federal Arbitration Act governs the interpretation and enforcement of this Dispute Resolution Agreement. With respect to all disputes or claims that arise out of or relate in any way to the Services or these Terms, this Dispute Resolution Agreement supersedes any contrary terms regarding dispute resolution in any other agreement between the parties.

  • Notice of disputes.If any party intends to seek arbitration of a dispute, that party must provide the other party with notice in writing (“Notice of Dispute”). This Notice of Dispute to Podbean must be sent to the following address (“Podbean’s Notice Address”):

    2810 N CHURCH ST

    STE 56077

    WILMINGTON, DE 19802-4447

    Podbean may send notice to Advertiser at the e-mail and mailing addresses associated with Advertiser’s account. Advertiser’s Notice of Dispute to Podbean must provide, as applicable, () Advertiser’s name and mailing address, (b) the email address Advertiser uses to log into Advertiser’s account, (c) a description of the dispute, including identification of the relevant campaigns, and (d) a statement of the relief requested. If the parties are unable or unwilling to resolve the dispute within 60 days after the Notice of Dispute is submitted, the dispute will be resolved by arbitration upon one party sending the other party or parties and the American Arbitration Association (“AAA”) a demand for arbitration. No arbitration demand may be submitted until at least 60 days after submission of the Notice of Dispute. Unless the parties agree otherwise, Advertiser’s demand for arbitration must be sent to Podbean’s Notice Address and entitled “Demand for Arbitration.” Podbean will send demands for arbitration to Advertiser at the e-mail and mailing addresses associated with Advertiser’s account.

  • Arbitration procedures. The arbitration will be governed by the AAA’s Commercial Arbitration Rules ("AAA Rules"), as modified by these Terms, and will be administered by the AAA. Unless the parties agree otherwise, the Expedited Procedures of the AAA Rules will apply to any claim of $75,000 or less. The AAA Rules are available online at adr.org. If the AAA is unavailable, the parties will agree to another arbitration provider or the court will appoint a substitute. To the fullest extent permitted by applicable law, any evidentiary submissions made in arbitration will be maintained as confidential in the absence of good cause for its disclosure. The arbitrator’s award will be maintained as confidential only to the extent necessary to protect either party’s trade secrets or proprietary business information or to comply with a legal requirement mandating confidentiality.

    Unless the parties agree otherwise, any arbitration hearings will take place in the county (or parish) of Advertiser’s principal place of business. If the value of Advertiser’s claim is $25,000 or less, Advertiser may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, by telephone, or by an in-person hearing. If the value of Advertiser’s claim exceeds $25,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision is based. All issues are for the arbitrator to decide, except that only a court of competent jurisdiction may decide issues relating to the scope and enforceability of this arbitration provision, the arbitrability of disputes, or the interpretation of Section 12(E). Arbitration rulings will not have preclusive effect in any proceedings involving different Advertisers in any forum. The arbitrator can award the same individualized damages and relief that a court can award. Judgment on the award may be entered by any court having jurisdiction.

  • Costs of arbitration. The AAA’s fee schedule is subject to change and may be found in the AAA Rules (available online at adr.org or by calling the AAA at 1-800-778-7879). Each party will pay all AAA filing, administrative, and arbitrator fees for any arbitration that such party commences.
  • No class or representative arbitration. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim without affecting other Podbean users or other customers or advertisers. ADVERTISER AND PODBEAN AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL PROCEEDING. Upon motion of one or more affected parties, and after providing all other affected parties an opportunity to be heard, the arbitrator may, in its discretion, consolidate more than one Advertiser’s claims to promote efficiency in discovery and to avoid inconsistent legal rulings. For the avoidance of doubt, any consolidation under the preceding sentence will be limited only to currently-pending arbitrations initiated under this agreement, and the arbitrator may not preside over any form of a representative or class proceeding. All parties will retain the right to request an individualized hearing. If a court decides that applicable law precludes enforcement of any of these prohibitions or limitations on (a) non-individualized relief, (b) class, representative, and private attorney general claims, or (c) consolidation with respect to a particular claim or a particular request for relief (such as injunctive relief), and if all appeals challenging the court's decision are denied, then the parties agree that such a claim or request for relief will be decided by a court after all other claims and requests for relief are arbitrated.
  • 30-day opt out period. Advertiser has the right to opt out of this Dispute Resolution Agreement. An Advertiser who does not wish to be bound by this Dispute Resolution Agreement (including its waiver of class and representative claims) must notify Podbean as set forth below within 30 days of the first acceptance date of any version of these Terms containing an arbitration provision (unless a longer period is required by applicable law). Advertiser’s notice to Podbean under this subsection must be submitted via email to contact@podbean.com. An opt-out notice does not revoke or otherwise affect any previous arbitration agreement between Advertiser and Podbean.
  • Future changes to Dispute Resolution Agreement. If Podbean makes any changes to this Dispute Resolution Agreement (other than a change to Podbean’s Notice Address), Advertiser may reject any such change by notifying Podbean via the process set forth in Section 12(B) within 30 days of the change. It is not necessary to submit a rejection of the future change to this Dispute Resolution Agreement if Advertiser had properly opted out of arbitration in compliance with the requirements of Section 12(F). By rejecting a future change, Advertiser is agreeing that it will arbitrate any dispute in accordance with the language of this Dispute Resolution Agreement, as modified by any changes that Advertiser did not reject.

13. Miscellaneous.

  • Any suggestions, comments, improvements, ideas, enhancement requests or feedback provided by Advertiser to Podbean relating to the Platform, the Services or any other services or products of Podbean (collectively, “Feedback”) are provided voluntarily. Advertiser agrees that all Feedback may be used by Podbean without compensation, accounting or attribution to Advertiser, and Advertiser grants a perpetual, irrevocable, fully paid up right and license to the Feedback.
  • By providing any mobile or other telephone number to Podbean in connection with the Services, Advertiser authorizes Podbean, its affiliates and their agents to call and send text messages (for which standard message and data rates may apply) to the provided telephone numbers, including by an automatic telephone dialing system, for purposes of the Services. However, Podbean will not rely on this permission to initiate autodialed calls or text messages for marketing purposes. Advertiser further authorizes Podbean, its affiliates and their agents to send electronic mail to Advertiser for purposes of the Services.
  • ALL CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS OR THE SERVICES WILL BE GOVERNED BY NEW YORK LAW, EXCLUDING NEW YORK’S CONFLICT OF LAWS RULES, EXCEPT TO THE EXTENT THAT NEW YORK LAW IS CONTRARY TO OR PREEMPTED BY FEDERAL LAW.
  • EXCEPT AS PROVIDED IN SECTION 12, ALL CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS OR THE SERVICES WILL BE LITIGATED EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF NEW YORK COUNTY, NEW YORK; THE PARTIES CONSENT TO PERSONAL JURISDICTION IN THESE COURTS.
  • These Terms are the parties’ entire agreement relating to their subject matter and supersede all other agreements between the parties relating to its subject matter. Podbean will not be bound by the terms of any Advertiser purchase orders or online portal.
  • Neither party will make any public statement regarding these Terms except (i) when required by law, and (ii) Podbean may include Advertiser’s name and logo in its marketing, promotional materials and customer lists.
  • Except as provided in Section 12, all notices must be in writing and sent via email. The email address for notices being sent to Podbean is contact@podbean.com. Except as provided in Section 12, all other notices to Advertiser will be in writing and sent to an email address associated with Advertiser’s account. Notice will be treated as given on receipt, as confirmed by written or electronic means. These notice requirements do not apply to legal service of process, which is instead governed by applicable law, nor do they apply to Section 12.
  • Except for modifications to these Terms by Podbean under Section 12, any amendment must be agreed to by both parties and must expressly state that it is amending these Terms. Neither party will be treated as having waived any rights by not exercising (or by delaying the exercise of) any rights under these Terms. Except as provided in Section 12(E), if any provision of these Terms is found unenforceable, that provision will be severed and the balance of the Terms will remain in full force and effect.
  • Podbean may assign any or all of these Terms, and may assign or delegate, in whole or in part, any of its rights or obligations under these Terms. Advertiser may not assign these Terms, in whole or in part, nor transfer or sub-license Advertiser’s rights under these Terms, to any third party. Except as explicitly provided above, there are no third-party beneficiaries to these Terms. These Terms do not create any agency, partnership, joint venture, or employment relationship among the parties.
  • Except for payment obligations, no party or its affiliates are liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control.