Terms of Service

TERMS & CONDITIONS
1. YOUR ACCEPTANCE
A. These terms of service (“Terms of Service”) govern you
r use of the Remark Podcasting mobile application and
Remark Podcasting website (together the “Service”), ow
ned and operated by Adam Smith (“Remark Podcasting”).
By
accessing or using the Service you signify your agreement
to be bound by these Terms of Service and Remark
Podcasting’s Privacy Policy, found at
http://remark.com/privacy
a nd incorporated herein by reference. If you do not
agree to be bound by all of these Terms of Service, do
not access or use the Service.
B. Although Remark Podcasting may attempt to notify
you when major changes are made to the Terms of Service
,
you should periodically review the most up-
to
-date version. Remark Podcasting may, in its sole discret
ion, modify or
revise the Terms of Service at any time, and your contin
ued use of the Service constitutes agreement to be boun
d by
such modifications or revisions.
2. SERVICE
A.These Terms of Service apply to all users of the Service
, including users who are also contributors of Content o
n
the Service. “Content” includes the text, software, scr
ipts, graphics, photos, sounds, music, videos, audiovisua
l
combinations, interactive features and other materials
you may view on, access through, or contribute to the Se
rvice.
B. You are solely responsible for your use of the Service,
your interaction with other users of the Service and a
ny
Content you post to the Service, and for any consequence
s thereof. You agree that Remark Podcasting is not
responsible or liable for the conduct of any user.
C. The Service may contain links to third party websites
that are not owned or controlled by Remark Podcasting
.
Remark Podcasting has no control over, and assumes no re
sponsibility for, the content, privacy policies, or pract
ices
of any third party websites. In addition, Remark Podcast
ing will not and cannot censor or edit the content of a
ny third-
party site. By using the Service, you expressly relieve R
emark Podcasting from any and all liability arising f
rom your
use of any third-party website.
3. COMMUNITY GUIDELINES
A. You may not post violent, nude, unlawful, pornogr
aphic, obscene or sexually suggestive photos, links, videos
or
other Content via the Service.
B. You may not use the Service to (i) attack or demean
individuals or groups, (ii) engage in predatory beh
avior,
stalking, harassment, bullying, abuse or intimidation,
(iii) defame or impersonate people or entities or (i
v) engage in
other hostile, harmful, discriminatory, hateful or off
ensive speech.
C. You may not disclose personal, confidential or any n
on-public information via the Service, including, with
out
limitation, your or any other person’s credit card infor
mation, social security or alternate national identity n
umbers or
non
-public addresses, phone numbers or email addresses.
D. You may not use the Service for any illegal activit
y or unauthorized purposes and must comply with all law
s, rules,
and regulations, including federal, state, and local
and provincial, applicable to your use of the Service an
d your
Content, including but not limited to copyright and t
rademark laws.
Violation of these Terms of Service, including the fore
going Community Guidelines or any other action that
Remark
Podcasting determines is harmful to the Service or the
use of the Service by others may, in Remark Podcasting’s
sole
discretion, result in removal of the violating Conten
t and/or termination of your Remark Podcasting account.
4. Remark Podcasting ACCOUNTS
A. In order to access some features of the Service, you w
ill have to create a Remark Podcasting account. You ma
y
not use another user’s account without permission. When
creating your account, you must provide accurate and
complete information. You are responsible for all acti
vity that occurs on your account. You must notify Remark
Podcasting immediately of any breach of security or una
uthorized use of your account.
B. Remark Podcasting will not be liable for any losses t
o you caused by any unauthorized use of your account.
5.
GENERAL USE OF THE SERVICE
A. Remark Podcasting grants you permission to access and use
the Service as set forth in the Terms of Service,
provided that:
B. You agree not to alter or modify any part of the
Service.
C. You agree not to interfere with or disrupt the Se
rvice or servers or networks connected to the Service, inc
luding by
transmitting any worms, viruses, spyware, malware or an
y other code of a destructive or disruptive nature. Yo
u agree
not to inject content or code or otherwise alter or int
erfere with the way any Remark Podcasting content is ren
dered
or displayed in a user’s browser or device. You agree no
t to circumvent, disable or otherwise interfere with secu
rity-
related features of the Service or features that preve
nt or restrict use or copying of any Content or enforce
limitations
on use of the Service or the Content therein.
D. You agree not to use the Service for any of the fo
llowing commercial uses unless you obtain Remark Podcasting
‘s
prior written approval:
the sale of access to the Service; or
the sale of advertising, sponsorships, or promotions p
laced on or within the Service, including any Content
shared on the Service.
E. Prohibited commercial uses do not include uploading o
riginal Content to the Service to promote your business
or
artistic enterprise.
F. In your use of the Service, you will comply with all
applicable laws.
G. You may not access Remark Podcasting’s private APIs un
less authorized to do so by Remark Podcasting.
H. You agree not to create any Remark Podcasting account
through unauthorized means, including but not limi
ted to,
by using an automated device, script, bot, spider, crawl
er or scraper.
I. You agree not to crawl, scrape, cache, or otherwise
access any Content within the Service via any automated
means.
J. You agree not to create multiple accounts with the
intention of being disruptive or abusive to the Servi
ce or as an
effort to “game” the system by creating artificial inf
luence around specific Content or accounts. If you are cr
eating
accounts that perform overlapping behaviors across speci
fic scenarios, you are subject to possible account
termination
K. Remark Podcasting reserves the right to modify or di
scontinue any aspect of the Service or your access to the
Service for any reason, without notice, at any time, an
d without liability to you.
6. YOUR USE OF Remark Podcasting CONTENT
In addition to the general restrictions above, the fol
lowing restrictions and conditions apply specifically to
your use of
Content:
A. The Content on the Service, and the trademarks, serv
ice marks and logos on the Service, are owned by or
licensed to Remark Podcasting, subject to copyright and ot
her intellectual property rights under the law.
B. You may access Content for your personal use solely as
intended through the provided functionality of the Se
rvice
and as permitted under these Terms of Service. You agr
ee to not alter, remove, or conceal any copyright, trad
emark,
service mark or other proprietary rights notices incorpor
ated in or accompanying any Content and to not copy,
reproduce, modify, adapt, prepare derivative works base
d on, perform, display, publish, distribute, broadcast,
sell,
license, or otherwise exploit any Content for any other
purposes without the prior written consent of Remark
Podcasting or the respective licensors of the Content. In
addition, all page headers, custom graphics, button ic
ons
and scripts are service marks, trademarks and/or trade dr
ess of Remark Podcasting, and may not be copied, imitate
d
or used, in whole or in part, without prior written
permission from Remark Podcasting.
C. Remark Podcasting and its licensors reserve all rights
not expressly granted in and to the Service and the Co
ntent.
D. You agree not to circumvent, disable or otherwise i
nterfere with security-related features of the Service
or features
that prevent or restrict use or copying of any Content
or enforce limitations on use of the Service or the Co
ntent
therein.
E. Remark Podcasting does not guarantee the accuracy, val
idity, or completeness of any Content on the Service, no
r
do we endorse or support any opinions expressed in the S
ervice. You understand and acknowledge that you may be
exposed to Content that may be deemed inaccurate, offe
nsive, indecent, objectionable or otherwise inappropria
te,
and you agree to waive, and hereby do waive, any lega
l or equitable rights or remedies you have or may hav
e
against Remark Podcasting with respect thereto, and, to
the extent permitted by applicable law, agree to in
demnify
and hold harmless Remark Podcasting, its owners, operat
ors, affiliates, licensors, and licensees to the fullest e
xtent
allowed by law regarding all matters related to your
use of the Service.
7. YOUR CONTENT; LICENSE TO Remark Podcasti
ng
A. As a Remark Podcasting account holder, you may submit
Content to the Service. You understand that Remark
Podcasting does not guarantee any confidentiality with
respect to any Content you submit.
B. You shall be solely responsible for your own Content a
nd the consequences of submitting your Content on the
Service. You should only provide Content that you are
comfortable publically sharing with others under these
Terms
of Service. You affirm, represent, and warrant that:
(i) you own the Content posted by you on or through th
e Service
or otherwise have the right to grant the rights and
licenses set forth in these Terms of Service; (ii) the po
sting and use
of your Content on or through the Service does not vio
late, misappropriate or infringe on the rights of any
third party,
including, without limitation, privacy rights, publi
city rights, copyrights, trademark and/or other intellect
ual property
rights; (iii) you agree to pay for all royalties, fees,
and any other monies owed by reason of Content you pos
t on or
through the Service; and (iv) you have the legal righ
t and capacity to enter into these Terms of Service in you
r
jurisdiction. You retain all of your ownership rights i
n your Content. By submitting Content to Remark Podcast
ing, you
hereby grant Remark Podcasting a worldwide, non-exclusiv
e, royalty-free, sublicenseable and transferable license
to
use, copy, reproduce, process, modify, adapt, prepare deri
vative works of, monetize, publish, transmit, display,
perform and distribute the Content in connection with
the Service and Remark Podcasting’s (and its successors’ and
affiliates’) business, including without limitation for
promoting and redistributing part or all of the Ser
vice (and
derivative works thereof) in any media formats and t
hrough any media channels, including without limitatio
n
Instagram. You also hereby grant each user of the Serv
ice a worldwide, non-exclusive, royalty-free, sublicensea
ble
and transferable license to access your Content through th
e Service, and to use, reproduce, distribute, modify,
prepare derivative works of, display and perform such C
ontent as permitted through the functionality of the
Service
and under the Terms of Service.
C. You hereby agree that Remark Podcasting may place ad
vertising, sponsorship or promotional material on the
Service in conjunction with your Content. The manifestat
ion of how such advertising and promotional content ap
pear
are subject to change over time without specific notifi
cation you. You also understand that Remark Podcasting
may
not always identify content as advertising or promotion
al content.
D. You are free to remove your Content at any time.
You understand and agree, however, that Remark Podca
sting
may retain, but not display, distribute or perform, se
rver copies of your Content that have been removed or
deleted by
you. Further, you understand and agree that any Conten
t you have submitted which has been previously downloa
ded
by any other user or person will remain within the contr
ol of such user or person. To request that content be re
moved
email info@remark.fm.
E. You further agree that Content you submit to the
Service will not contain third party copyrighted mater
ial, or
material that is subject to other third party proprie
tary rights, unless you have permission from the rightful
owner of
the material or you are otherwise legally entitled to
post the material and to grant Remark Podcasting all
of the
license rights granted herein.
F. Remark Podcasting expressly disclaims any and all liabil
ity in connection with Content. Remark Podcasting does
not permit copyright infringing activities and infring
ement of intellectual property rights on the Service
and will remove
Content if properly notified that such Content infring
es on another’s intellectual property rights. Remark Pod
casting
reserves the right to remove Content without prior no
tice.
G. You understand that the Service may be interrupte
d, including, without limitation, for scheduled or em
ergency
maintenance, including upgrades or failure of telecommu
nications links and/or equipment. Given the nature of
data/storage and the possibilities of content loss across t
he Service, Remark Podcasting encourages all users to
keep local copies of all Content they publish in Remark P
odcasting. Remark Podcasting is not a backup service for
your Content and you agree that you will not rely on t
he Service for the purposes of Content backup and/or sto
rage.
Remark Podcasting is not liable for any modification, su
spension or discontinuation of the Service or Content l
oss
through use of the Service.
8. ACCOUNT TERMINATION POLICY
A. Remark Podcasting will terminate a user’s access to the
Service if, under appropriate circumstances, the user is
determined to have infringed the Terms of Service.
B. Remark Podcasting reserves the right to decide whethe
r Content violates the Terms of Service for reasons ot
her
than copyright infringement, such as, but not limited t
o, violation of the Community Guidelines set forth ab
ove.
Remark Podcasting may at any time, without prior notice
and in its sole discretion, remove such Content and/or
terminate a user’s account for submitting such material
in violation of the Terms of Service. Content removed
from the
Service may continue to be stored on Remark Podcasting se
rvers, including for purposes of compliance with legal
obligations.
9. REPORTING COPYRIGHT VIOLATIONS
Remark Podcasting respects the intellectual property of ot
hers and require that users of the Service do the same.
To
protect the rights of copyright holders, it is our pol
icy to respond to written notices of alleged infringeme
nt that comply
with the Digital Millennium Copyright Act (“DMCA”). I
f you are a copyright owner or an agent thereof and b
elieve that
any Content infringes upon your copyrights, you may submit
a notification pursuant to the DMCA by providing
Remark Podcasting with the following information in w
riting (please consult your legal counsel or see Section
512(c)(3) of the DMCA to confirm these requirements):
A. A physical or electronic signature of a person autho
rized to act on behalf of the owner of an exclusive r
ight that is
allegedly infringed;
B.Identification of the copyrighted work claimed to h
ave been infringed, or, if multiple copyrighted works
at a single
online site are covered by a single notification, a re
presentative list of such works at that site;
C. Identification of the material that is claimed to
be infringing or to be the subject of infringing acti
vity and that is to be
removed or access to which is to be disabled, and informa
tion reasonably sufficient to permit us to locate the
material;
D. Information reasonably sufficient to permit the servi
ce provider to contact the complaining party, including
your
address, telephone number, and, if available, an emai
l address;
E. A statement that the complaining party has a goo
d faith belief that use of the material in the manne
r complained of
is not authorized by the copyright owner, its agent, or
the law; and
F.A statement that the information in the notificatio
n is accurate, and, under penalty of perjury, that the
complaining
party is authorized to act on behalf of the owner of
an exclusive right that is allegedly infringed.
Please send such written communication to us via email at:
info@remark.fm
If you believe that your Content that was removed (or
to which access was disabled) is not infringing, or tha
t you have
the authorization from the copyright owner, the copyr
ight owner’s agent, or pursuant to the law, to post a
nd use the
material in your Content, you may send a counter-notice
containing the following information to Remark Podca
sting:
A. Identification of the Content that has been remov
ed or to which access has been disabled and the
location at which the Content appeared before it was r
emoved or disabled.
to resolve any claim, dispute, or controversy (excluding
claims for injunctive or other equitable relief) ari
sing out of or
in connection with or relating to these Terms by bindi
ng arbitration by the American Arbitration Association (
“AAA”)
under the Commercial Arbitration Rules and Supplement
ary Procedures for Consumer Related Disputes then in
effect for the AAA, except as provided herein. Unless you
and Remark Podcasting agree otherwise, the arbitrati
on
will be conducted in the Northern District of Califo
rnia. Each party will be responsible for paying any AAA
filing,
administrative and arbitrator fees in accordance with A
AA rules. The award rendered by the arbitrator shall i
nclude
costs of arbitration, reasonable attorneys’ fees and reaso
nable costs for expert and other witnesses, and any
judgment on the award rendered by the arbitrator may
be entered in any court of competent jurisdiction. No
thing in
this Section shall prevent either party from seeking inj
unctive or other equitable relief from the courts fo
r matters
related to data security, intellectual property or unaut
horized access to the Service. ALL CLAIMS MUST BE
BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NO
T AS A PLAINTIFF OR CLASS MEMBER IN ANY
PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, AND,
UNLESS WE AGREE OTHERWISE, THE
ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON
‘S CLAIMS. YOU AGREE THAT, BY
ENTERING INTO THESE TERMS, YOU AND Remark Podcasting A
RE EACH WAIVING THE RIGHT TO A TRIAL
BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
14. ABILITY TO ACCEPT TERMS OF SERVICE
You affirm that you are either 18 years of age or old
er, an emancipated minor, or possess legal parental or
guardian
consent, and are fully able and competent to enter into
and comply with the terms, conditions, obligations,
affirmations, representations, and warranties set fort
h in these Terms of Service. In any case, you affirm tha
t you are
over the age of 13, as the Service is not intended fo
r children under the age of 13. If you are under 13
years of age,
please do not use the Service.
15. ASSIGNMENT
The Terms of Service, and any rights and licenses grante
d hereunder, may not be transferred or assigned by you
, but
may be assigned by Remark Podcasting without restriction
.
16. GENERAL
If any provision of the Terms of Service is deemed i
nvalid by a court of competent jurisdiction, the inval
idity of such
provision shall not affect the validity of the remain
ing provisions of the Terms of Service, which shall rema
in in full
force and effect. No waiver of any provision of the T
erms of Service shall be deemed a further or continui
ng waiver of
such provision or any other provision, and any failure
by Remark Podcasting to assert any right or provision u
nder the
Terms of Service shall not constitute a waiver of such r
ight or provision. Remark Podcasting reserves the right
to
amend the Terms of Service at any time without notice
. It is your responsibility to review the Terms of Se
rvice for any
changes. Your use of the Service following any amendmen
t of the Terms of Service will signify your assent to an
d
acceptance of its revised terms. YOU AND Remark Podcastin
g AGREE THAT ANY CAUSE OF ACTION ARISING
OUT OF OR RELATED TO THE SERVICES MUST COMMENCE WIT
HIN ONE YEAR AFTER THE CAUSE OF
ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS
PERMANENTLY BARRED