END USER LICENSE AGREEMENT (EULA)
This End User License Agreement and Terms of Service (this “EULA”) is a binding contract between you, an individual user (“you” or “your”) and New Pod City, llc. (“New Pod City,” “we,” “us” or “our”) governing your use of the software applications that New Pod City makes available for download to mobile phones, tablets, set-top boxes and other consumer electronic or computer devices, whether directly, through third parties or on a pre-installed basis (individually and collectively), the website located at http://www.NewPodCity.com and any other online properties owned or controlled by or on behalf of New Pod City (each a “Website” and, collectively, the “Websites”) (the Websites are the “Service”).
As provided in greater detail in this EULA (and without limiting the express language of this EULA), you acknowledge the following:
- the Service is licensed, not sold to you, and you may use the Service only as set forth in this EULA;
- the use of the Service may be subject to separate third party terms of service and fees, including, without limitation, your mobile network operator’s (the “Carrier”) terms of service and fees, including fees charged for data usage and overage, which are your sole responsibility;
- we provide the Service to you on an “as is” basis without warranties of any kind and New Pod City's liability to you is limited;
- disputes arising between you and New Pod City will be resolved by binding arbitration. By accepting this EULA, as provided in greater detail in Section 10 below, you and New Pod City are each waiving the right to a trial by jury or to participate in a class action.
General Terms and Conditions
- Changes to this EULA
You understand and agree that we may change this EULA at any time without prior notice. We will try to provide you with prior notice of any material changes that may apply to you, including through the posting of a revised EULA that you may be required to accept in order to continue using the Service. You may read a current, effective copy of this EULA at any time by selecting the appropriate link on the Service. The revised EULA will become effective at the time of posting unless specified otherwise. Any use of the Service after the effective date will constitute your acceptance of such revised EULA. If you find any change to this EULA or the Service unacceptable, then your sole remedy is to stop accessing, browsing and otherwise using the Service. The terms of this EULA will govern any updates New Pod City provides to you that replace and/or supplement any portion of the Service, unless the upgrade is accompanied by a separate license or revised EULA, in which case the terms of that license or revised EULA will govern. Notwithstanding the preceding sentences of this Section 1.a, no revisions to this EULA will apply to any dispute between you and New Pod City that arose prior to the effective date of such revision.
- Jurisdictional Issues
The Service is controlled and operated by New Pod City from its offices in the State of New Jersey. New Pod City makes no representation that materials on the Service are appropriate, lawful or available for use in any locations other than the United States of America. Those who choose to access or use the Service from locations outside the United States of America do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. Access to the Service from jurisdictions where the contents or practices of the Service are illegal, unauthorized or penalized is strictly prohibited.
THE SERVICE IS NOT FOR PERSONS UNDER THE AGE OF 13 OR FOR ANY USERS PREVIOUSLY SUSPENDED OR REMOVED FROM THE SERVICE BY NEW POD CITY. IF YOU ARE UNDER 13 YEARS OF AGE, THEN YOU MUST NOT USE OR ACCESS THE SERVICE AT ANY TIME OR IN ANY MANNER. Furthermore, by accessing or using the Service, you affirm that either you are at least the age of majority in your jurisdiction or you have been authorized to use the Service by your parent or legal guardian who is at least the age of majority in your jurisdiction.
- Additional Terms
We also may require you to agree to additional terms and/or policies beyond those mentioned in Section 1.b that we make available to you from time-to-time in connection with your use of the Service, including, without limitation, any such terms that apply to contests that we run on the Service (“Additional Terms”). Any such Additional Terms are hereby incorporated into and subject to this EULA, and this EULA will control in the event of any conflict or inconsistency with the Additional Terms to the extent of the conflict or inconsistency.
New Pod City provides an information location tool and audio guide service offering access to a selection of indexed radio stations, podcasts, and other content, including radio stations, podcasts and other content created by or on behalf of New Pod City. Certain features of the Service are available to you free of charge (the “Free Service”). Other aspects of the service, currently referred to as “New Pod City Premium,” are only available to paying subscribers (the “Subscriptions”). Any end user who access and uses the Free Service is a “Visitor,” and any end user who pays for a subscription is a “Subscriber.” The term “Users” refers to Visitors and Subscribers, collectively.
i. Service. You acknowledge and agree that this EULA is entered into in consideration of your use of the Service pursuant to this EULA and for other good and valuable consideration, the receipt and sufficiency of which you acknowledge.
ii. Subscriptions. If you are a Subscriber, then you acknowledge and agree that the additional terms below apply to your Subscriptions, and that New Pod City provides access to Subscriptions in consideration of your payment of the amounts described in that Section.
iii. No Rights to Compensation. In return for enjoying the Free Service or Subscriptions, you further acknowledge and agree that New Pod City may generate revenues (including from advertising and sponsorships), increase goodwill or otherwise increase the value of New Pod City from your use of the Service, and you will have no right to share in any such revenue, goodwill or value whatsoever.
- Changes to the Service
New Pod City may at its sole discretion and from time to time change, add or remove features, functionality and content of or available through the Service without any notice to you. New Pod City also reserves the right to discontinue some or all of the features of the Service at any time at its sole discretion (including the provision of software updates and support for different devices or platforms). You acknowledge and agree that New Pod City will not be liable to you or to any third party for any modification, suspension or discontinuance of the Service, any App, or any specific functionality of the Service or the removal of any features, functionality or content. If you are dissatisfied with any changes to the Service, then your sole option is to discontinue or terminate your use of the Service as described herein. Notwithstanding anything in this EULA to the contrary, if you have signed up for a Subscription and New Pod City cancels your Subscription without cause, then New Pod City will refund to you the pro-rated (by month), unearned portion of any amounts that you have prepaid to New Pod City for such Subscription. No refunds will be provided for the termination or discontinuance of support.
- Mobile Services
The Service is currently accessible via computer or on a mobile phone, tablet or other connected device (collectively, “Mobile Services”). Your mobile carrier’s or ISPs normal messaging, data and other rates and fees will apply to your use of the Mobile Services. In addition, downloading, installing or using certain Mobile Services may be prohibited or restricted by your mobile carrier, and not all Mobile Services may work with all carriers or devices. Therefore, you are solely responsible for checking with your mobile carrier to determine if the Mobile Services are available for your mobile device(s), what restrictions, if any, may be applicable to your use of the Mobile Services, and how much they will cost you. Nevertheless, all use of the Mobile Services must be in accordance with this EULA.
- Service Security
You may not violate, or attempt to violate, the security of the Service. Any such violations may result in criminal and/or civil penalties against you, as well as the termination of your privilege to use the Service. New Pod City reserves the right to investigate any alleged or suspected violations and, if a criminal violation is suspected, to refer such suspected violation to the appropriate law enforcement agencies and cooperate fully with such investigations. This cooperation may include the disclosure of all or your activities on or related to the Service. You agree to promptly notify New Pod City if you learn or reasonably suspect that any security breach related to the Service has occurred.
- Log-In Credentials
While you may access the Free Service and browse the public-facing portions of the Service without registering with us, in order to access Subscriptions and enjoy the full functionality and benefits of the Service you must register an account with us (an “Account”)
- Account Security
You are responsible for the security of your Account, and are fully responsible for all activities that occur through the use of your Account credentials. You agree to notify New Pod City immediately at NewPodCity@gmail.com if you suspect or know of any unauthorized use of your Account credentials or any other breach of security with respect to your Account. New Pod City will not be liable for any loss or damage arising from unauthorized use of your Account credentials prior to you notifying New Pod City of such unauthorized use or loss of your Account credentials.
- Accuracy of Information
When creating an Account, you will provide true, accurate, current and complete information as New Pod City requests. You will update the information about yourself promptly, and as necessary, to keep it current and accurate. We reserve the right to disallow, cancel, remove or reassign certain usernames and permalinks in appropriate circumstances, as determined by us in our sole discretion, and may, with or without prior notice, suspend or terminate your Account if activities occur on your Account which, in our sole discretion, would or might constitute a violation of this EULA, cause damage to or impair the Service, infringe or violate any third party rights, damage or bring into disrepute the reputation of New Pod City , or violate any applicable laws or regulations. If messages sent to the e-mail address you provide are returned as undeliverable, then New Pod City may terminate your Account immediately without notice to you and without any liability to you or any third party.
Additional Terms for Subscription
- Subscription Process
You may purchase a Subscription through the Website, through our App, or through such other channels as New Pod City may make available from time-to-time in its sole discretion. Where you purchase a Subscription through the Website or another channel controlled by New Pod City, your payments are processed by our third party payment processors. Where you purchase a Subscription through our iOS or Android Apps or through a third party’s consumer electronic devices, your payments are processed by Apple or Google, or the manufacturer of the consumer electronic device (or any of their third party payment processors), as applicable. We accept various forms of payment, as specified during sign-up. We do not accept cash or checks.
From time to time, New Pod City or others on our behalf may offer trials of Subscriptions for a specified period free-of-charge or at a reduced rate (“Trial”). The length of any Trial may vary. Trials are for new and certain former Subscribers only. New Pod City reserves the right, at our discretion, to determine your eligibility for a Trial, and, subject to applicable laws, to withdraw or to modify a Trial at any time without prior notice and with no liability, to the greatest extent permitted under the law. We will require you to provide your payment details at the start of the Trial. The first day following the end of your Trial or, if you are not eligible for a Trial, then the day you purchase your Subscription, is the first day of your billing cycle (“Billing Date”). YOU will BE automatically charged for the applicable Subscription on the first day following the end of the Trial, on a recurring monthly or annual basis, unless you cancel the applicable Subscription before the end of the Trial.
- Billing Authorization
BY PROVIDING YOUR PAYMENT METHOD AND OBTAINING A SUBSCRIPTION TO THE SERVICE, YOU AUTHORIZE NEW POD CITY, APPLE, OR GOOGLE (OR ANY OF THEIR SERVICE PROVIDERS), AS APPLICABLE, TO CHARGE TO YOUR DESIGNATED PAYMENT METHOD THE APPLICABLE MONTHLY OR ANNUALLY RECURRING SUBSCRIPTION FEES (“SUBSCRIPTION FEE”), AND ANY APPLICABLE SALES, TELECOMMUNICATION, EXCISE, VALUED-ADDED OR SIMILAR TAXES (“TAXES”). THE SUBSCRIPTION FEE IS EXCLUSIVE OF ANY SUCH TAXES. THE SUBSCRIPTION FEE IS PAYABLE IN THE CURRENCY SPECIFIED DURING SIGN-UP.
- Subscription Fee Changes
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, WE RESERVE THE RIGHT TO CHANGE THE SUBSCRIPTION FEE AT ANY TIME IN OUR SOLE DISCRETION. IF WE CHANGE THE SUBSCRIPTION FEE, THEN WE WILL PROVIDE YOU NOTICE OF THE PROPOSED CHANGE AT LEAST 30 DAYS BEFORE THE CHANGE IS TO TAKE EFFECT. SUBSCRIPTION FEE CHANGES WILL TAKE EFFECT AT THE START OF THE NEXT RENEWAL OF YOUR SUBSCRIPTION FOLLOWING THE DATE OF THE PRICE CHANGE. YOU ACCEPT THE NEW PRICE BY CONTINUING TO USE THE SERVICE AFTER THE PRICE CHANGE TAKES EFFECT. IF YOU DO NOT ACCEPT THE PRICE CHANGE, THEN YOU MAY UNSUBSCRIBE FROM THE SERVICE PRIOR TO THE PRICE CHANGE GOING INTO EFFECT.
- Automatic Renewal
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, BY PURCHASING A SUBSCRIPTION TO THE SERVICE, YOU AGREE THAT YOUR SUBSCRIPTION WILL AUTOMATICALLY RENEW AT THE END OF EACH SUBSCRIPTION TERM AT THE THEN-CURRENT SUBSCRIPTION FEE AND FOR THE SAME TERM AS THE IMMEDIATELY PRECEDING SUBSCRIPTION, UNLESS AND UNTIL YOU CANCEL YOUR SUBSCRIPTION.
- Recurring Charges
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, UPON EXPIRATION OF YOUR SUBSCRIPTION, YOU WILL AUTOMATICALLY BE BILLED FOR THE SAME SUBSCRIPTION PLAN (OR THE MOST SIMILAR SUBSCRIPTION PLAN, IF YOUR PRIOR PLAN IS NO LONGER AVAILABLE) AT THE THEN-CURRENT SUBSCRIPTION FEE PLUS ANY TAXES. YOUR PAYMENT METHOD WILL BE CHARGED THE SUBSCRIPTION FEE FOR THE RENEWAL TERM OF YOUR SUBSCRIPTION ON YOUR BILLING DATE, BASED ON THE TYPE OF SUBSCRIPTION (E.G., ON A PARTICULAR DATE EACH MONTH FOR A MONTHLY SUBSCRIPTION). IF, HOWEVER, THE BILLING DATE OF YOUR SUBSCRIPTION IS ON THE 29TH, 30TH OR 31ST DAY OF A MONTH, AND YOUR BILLING DATE DOES NOT EXIST IN A PARTICULAR MONTH BECAUSE THERE ARE FEWER THAN THIRTY-ONE (31) DAYS IN THE MONTH PAYMENT IS DUE, THEN YOUR BILLING DATE FOR THAT PARTICULAR RENEWAL WILL BE ON THE LAST DAY OF THE MONTH IN WHICH YOUR BILLING DATE WOULD OTHERWISE BE.
- Cancellation and Refunds
YOU MAY CANCEL YOUR SUBSCRIPTION TO THE SERVICE AT ANY TIME. IF YOU CANCEL YOUR SUBSCRIPTION, THEN YOU WILL HAVE ACCESS TO THE SUBSCRIPTION UNTIL THE DATE THAT WOULD HAVE BEEN YOUR NEXT BILLING DATE, AFTER WHICH YOU WILL BE DOWNGRADED TO THE FREE SERVICE.
- Failure to Pay
If you fail to pay the applicable Subscription Fee when due, then you will be downgraded to the Free Service. If you are downgraded, then New Pod City may, but is not obligated to, maintain your Account and/or related content and information, in order to allow you to pay the past-due charges and restore your Subscription.
Intellectual Property Rights
Subject to your complete and ongoing compliance with this EULA, New Pod City hereby grants you a revocable, non-exclusive, non-transferable, non-sublicensable, royalty-free and worldwide right and license to access and use the Service solely for your personal, non-commercial entertainment use as intended through the provided functionality of the Service and solely in strict compliance with the provisions of this EULA. You may not alter, modify, creative derivative works of, sell, license or in any way exploit any part of the Service except as expressly set forth in the preceding sentence.
- New Pod City Content
Except for User Content (defined below) and third party content owned or controlled by third party transmitting entities over whom New Pod City does not exercise a right and ability to control and where such content is made available through the Service when New Pod City is providing an information location tool, index or directory service (“Third Party Content”), the content that New Pod City itself provides to Users on or through the Service, including without limitation, any radio programs, podcasts or other audio content, text, graphics, photos, software and interactive features, may be protected by copyright or other intellectual property rights and is owned by New Pod City or its third party licensors (collectively, the “New Pod City Content”). You may not reproduce, modify, distribute, display, publish, transmit, communicate to the public, make available, broadcast, create derivative works from, publicly perform (including on a through-to-the audience basis) and otherwise use and exploit (collectively, “Use”) any New Pod City Content without New Pod City's prior authorization. You may not Use any User Content or Third Party Content without the prior authorization of the owners of such content, notwithstanding any functionalities of the Service. New Pod City does not guarantee access to any particular User Content, New Pod City Content, or Third Party Content. New Pod City or its licensors, and the owners of User Content and Third Party Content, may change, delete, or prohibit access to New Pod City Content, User Content or Third Party Content, as the case may be, or schedules of any of the foregoing, at any time with or without notice. You understand that by using the Service, you may encounter User Content, Third Party Content, and New Pod City Content that you may find offensive or objectionable and that might constitute Objectionable Content as defined in our Acceptable Use Policy. New Pod City is not the publisher of, nor responsible for, any Objectionable Content made available in User Content or Third Party Content, and to the fullest extent permitted by law, New Pod City will have no liability to you with respect to Objectionable Content you access via the Service. User Content, Third Party Content, and New Pod City Content may be transmitted with a variety of copy protection mechanisms. These copy protection mechanisms may be designed to protect the copyright interests of New Pod City or its licensors or third party transmitting entities, as applicable. These copy protection mechanisms may limit or prevent the ability of the Service to play New Pod City Content, User Content or Third Party Content. You agree that New Pod City will have no liability to you or any third party with regard to your ability to access, listen to, or otherwise use, any New Pod City Content, User Content or Third Party Content due to a copy protection mechanism. You may not remove or attempt to circumvent any copyright protection mechanisms in any New Pod City Content, User Content or Third Party Content without express authorization of the owner of such content or their authorized agent, or as otherwise permitted by law, and any attempts to do so may subject you to liability.
New Pod City trademarks, service marks and logos (the “New Pod City Trademarks”) used and displayed on the Service are New Pod City’s registered and unregistered trademarks or service marks. Other product and service names located on the Service may be trademarks or service marks owned by third parties (the “Third-Party Trademarks,” and, collectively with New Pod City Trademarks, the “Trademarks”). Except as otherwise permitted by law, you may not use the Trademarks to disparage New Pod City or the applicable third-party, New Pod City’s or a third-party’s products or services, or in any manner (using commercially reasonable judgment) that may damage any goodwill in the Trademarks. You may not use any Trademarks as part of a link to or from any Service without New Pod City’s prior express written consent. All goodwill generated from the use of any New Pod City Trademark will inure solely to New Pod City's benefit.
The Service, New Pod City Content, and Trademarks, including all intellectual property rights therein, are the sole and exclusive property of New Pod City and its licensors. New Pod City hereby reserves all rights not expressly granted to you in this Section 5. Accordingly, nothing in this EULA or on the Service will be construed as granting to you, by implication, estoppel or otherwise, any additional license rights in and to the Service or any New Pod City Content or Trademarks located or displayed therein. Except for the right to access Third Party Content through the Service, no rights are hereby granted to you with respect to such Third Party Content.
User Content and Other Content
This Section governs any material that you post, send or transmit (collectively, “Post”) through the Service, including, by way of example and not limitation, photographs, graphics, images and text (collectively, “User Content”) and other activities that New Pod City may take with respect to materials accessible through the Service.
- Licenses to User Content
By Posting User Content to or through the Service, you hereby grant to New Pod City (and New Pod City’s assignees, designees, successors, licensees, and sub-licensees) an unrestricted, perpetual, assignable, sublicensable, revocable, royalty-free, fully paid-up license throughout the world to Use all User Content you Post to or through the Service, through any media and formats now known or hereafter developed, in connection with the Service or our business.
- You Must Have Rights to the Content You Post
You must not Post any User Content to the Service if you are not the owner of or are not fully authorized to grant rights throughout the universe in all elements of the User Content you intend to Post to the Service . You represent and warrant that: (i) you own the User Content Posted by you on or through the Service or otherwise have the right to grant the license set forth in this EULA; (ii) the Posting and Use of your User Content on or through the Service does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights or any other rights of any party in any territory throughout the universe; (iii) the Posting of your User Content on the Service will not require us to obtain any further licenses from or pay any royalties, fees, compensation or other amounts or provide any attribution to any third parties; and (iv) the Posting of your User Content on the Service does not result in a breach of contract between you and a third party. You agree to pay all monies owing to any person as a result of Posting your User Content on the Service.
- Acceptable Uses and Objectionable Content
We want Users to have an enjoyable experience when they use the Service. To facilitate that, we have adopted an Acceptable Use Policy, which is hereby incorporated by reference into this EULA. You are required to comply with the Acceptable Use Policy when Posting any User Content to the Service. The Posting of any Objectionable Content, as defined in the Acceptable Use Policy, may subject you to third party claims and none of the rights granted to you in this EULA may be raised as a defense against any third party claims arising from your Posting of Objectionable Content. If you encounter any Objectionable Content on the Service, then please immediately email New Pod City at NewPodCity@gmail.com. You acknowledge and agree that New Pod City provides you with the ability to report Objectionable Content as a courtesy, and New Pod City has no obligation to remove or take any other action with respect to any Objectionable Content on the Service that you report to us. However, New Pod City in its sole discretion may take any actions it deems necessary and/or appropriate against any User who Posts Objectionable Content on the Service, including, but not limited to, warning the User, suspending or terminating the User’s Account, removing all of the User’s User Content Posted on the Service, and/or reporting the User to law enforcement or other governmental authorities, either directly or indirectly.
New Pod City has the right, but not the obligation, to monitor the Service, and may remove or restrict access to any User Content, Third Party Content or New Pod City Content from the Service for any reason in its sole discretion at any time, without notice and without any liability to you. You acknowledge that New Pod City may establish general practices and limits concerning use of the Service without notice to you, including, without limitation, the maximum period of time that User Content or New Pod City Content will be retained by the Service and the maximum storage space that will be allotted on New Pod City’s servers on your behalf. You acknowledge and agree that New Pod Citymay preserve any content and may also disclose any content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (i) comply with legal process, applicable laws or government requests; (ii) enforce this EULA; (iii) respond to claims that any content violates the rights of third parties; or (iv) protect the rights, property, or personal safety of New Pod City, its Users and the public. You understand that New Pod City does not guarantee any confidentiality with respect to User Content and will have no responsibility or liability for User Content that is deleted from the Service.
Special Notice for International Use; Export Controls
Software available in connection with the Service and the transmission of applicable data, if any, is subject to United States export controls. No software may be downloaded from the Service or otherwise exported or re-exported in violation of U.S. export laws. You download and use the software at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Service, including as it concerns online conduct and acceptable content. New Pod City makes no representation that the Service is appropriate or available for use in any particular location.
Advertisements and External Sites
New Pod City may display advertisements for the goods and services of third parties or other promotional materials on the Service. Your dealings with, or participation in, promotions of any third party advertisers on the Service, are solely between you and such third party, and your participation is subject to any terms and conditions associated with that advertisement or promotion. New Pod City does not endorse or represent such third parties, and by using the Service, you agree that New Pod City is not responsible or liable for any loss or damage of any sort incurred as a result of any such dealings or the presence of such third parties on the Service.
- External Sites
The Service may contain links to or the ability to share information with third party websites (“External Sites”). New Pod City does not endorse any External Sites or the content made available on such External Sites. All External Sites and any content thereon is developed and provided by others. You should contact the site administrator or Webmaster for those External Sites if you have any concerns regarding such content located on such External Sites. New Pod Cityis not responsible for the content of any External Sites and does not make any representations regarding the content or accuracy of any materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer and connected devices from viruses and other destructive programs. If you decide to access any External Sites, purchase any content from External Sites or subscribe to services offered by such External Site, then you do so at your own risk. You agree that New Pod City will have no liability to you arising from your use, engagement, exposure to or interaction with any External Sites.
While we are continually working to develop and evaluate our own product ideas and features, we pride ourselves on paying close attention to your interests, feedback, comments and suggestions. If you choose to contribute by sending New Pod City or our employees any ideas for products, services, features, modifications, enhancements, content, refinements, technologies, content offerings (such as audio, visual, audiovisual, games or other types of content), promotions, strategies or product/feature names or any related documentation, artwork, computer code, diagrams or other materials (collectively “Feedback”), then regardless of what your accompanying communication may say, the following terms will apply, so that future misunderstandings can be avoided. Accordingly, by sending Feedback to New Pod City, you agree that:
- New Pod City has no obligation to review, consider or implement your Feedback, or to return to you all or part of any Feedback for any reason
- Feedback is provided on a non-confidential basis, and New Pod City is not under any obligation to keep any Feedback you send confidential or to refrain from using or disclosing it in any way
- You irrevocably grant New Pod City and its successors and assigns perpetual and unlimited permission to Use the Feedback and derivatives thereof for any purpose and without restriction, free of charge and without attribution of any kind, including by making, using, selling, offering for sale, importing and promoting commercial products and services that incorporate or embody Feedback, whether in whole or in part, and whether as provided or as modified.
In the interest of resolving disputes between you and New Pod City in the most expedient and cost effective manner, you and New Pod City agree that any dispute arising out of or in any way related to this EULA or your use of the Service will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or in any way related to this EULA or your use of the Service, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether a claim arises during or after the termination of this EULA. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS EULA, YOU AND NEW POD CITY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION AND THAT THIS AGREEMENT SHALL BE SUBJECT TO AND GOVERNED BY THE FEDERAL ARBITRATION ACT.
Notwithstanding Section 10.a above, nothing in this EULA will be deemed to waive, preclude or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state or local agency if that action is available; (iii) seek injunctive relief in aid of arbitration from a court of competent jurisdiction; or (iv) to file suit in a court of law to address an intellectual property infringement claim.
Any arbitration between you and New Pod City will be governed by the Federal Arbitration Act and the Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this EULA, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting New Pod City. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability or enforceability of this binding arbitration agreement.
- Notice; Process
A party who intends to seek arbitration must first send a written notice of the dispute to the other party by U.S. Mail (“Notice”) or, if a postal address is not available, to the last known email address for such party. New Pod City’s address for Notice is: 247 East Front Street, Trenton, NJ 08611, Attn: Principal. The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or New Pod City may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or New Pod City must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor with a monetary award that exceeds the last written settlement amount offered by New Pod City prior to selection of an arbitrator, then New Pod City will pay you the highest of the following: (A) the amount awarded by the arbitrator, if any; (B) the last written settlement amount offered by New Pod City in settlement of the dispute prior to the arbitrator’s award; or (C) $1,000. Notwithstanding anything in this Agreement to the contrary, and for the avoidance of doubt, the arbitrator can award injunctive relief as a remedy in any arbitration arising under this Section 10.
If you commence arbitration in accordance with this EULA, then New Pod City will reimburse you for your payment of the filing fee, unless your claim is for more than $1,000 or as set forth below, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Trenton, New Jersey, but if the claim is for $1,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse New Pod City for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. Each party agrees that such written decision, and information exchanged during arbitration, will be kept confidential except to the extent necessary to enforce or permit limited judicial review of the award. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
- No Class Actions
YOU AND NEW POD CITY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and New Pod City agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
- Modifications to this Arbitration Provision
Except as otherwise provided in this EULA, if New Pod City makes any future change to this arbitration provision, other than a change to New Pod City’s address for Notice, then you may reject the change by sending us written notice within 30 days of the change to New Pod City’s address for Notice, in which case this arbitration provision, as in effect immediately prior to the changes you rejected, will continue to govern any disputes between you and New Pod City.
If Section 10.f above is found to be unenforceable or if the entirety of this Section 10 is found to be unenforceable, then the entirety of this Section 10 will be null and void.
Limitation of Liability and Disclaimer of Warranties
THE FOLLOWING TERMS IN THIS SECTION 11 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW:
- NEW POD CITY, ITS AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS (COLLECTIVELY, THE “NEW POD CITY PARTIES”) MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE SERVICE AND ANY CONTENT AVAILABLE ON THE SERVICE, INCLUDING, BUT NOT LIMITED TO, THE ACCURACY, RELIABILITY, COMPLETENESS APPROPRIATENESS, TIMELINESS OR RELIABILITY THEREOF. THE NEW POD CITY PARTIES WILL NOT BE SUBJECT TO LIABILITY FOR THE TRUTH, ACCURACY OR COMPLETENESS OF ANY CONTENT ON THE SERVICE OR ANY OTHER INFORMATION CONVEYED TO ANY USER, OR FOR ERRORS, MISTAKES OR OMISSIONS THEREIN, OR FOR ANY DELAYS OR INTERRUPTIONS OF THE DATA FROM WHATEVER CAUSE. AS A USER, YOU AGREE THAT YOU USE THE SERVICE AND ANY CONTENT THEREON AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR ALL CONTENT YOU UPLOAD TO THE SERVICE.
- THE NEW POD CITY PARTIES DO NOT WARRANT THAT THE SERVICE WILL OPERATE ERROR FREE, OR THAT THE SERVICE AND ANY CONTENT THEREON ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE SERVICE OR ANY CONTENT THEREON RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, THEN NO NEW POD CITY PARTY WILL BE RESPONSIBLE FOR THOSE COSTS.
- THE SERVICE AND ALL CONTENT THEREON ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. ACCORDINGLY, THE NEW POD CITY PARTIES DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES RIGHTS AND FITNESS FOR PARTICULAR PURPOSE.
- IN NO EVENT WILL ANY NEW POD CITY PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM, OR IN CONNECTION WITH, THE USE OR INABILITY TO USE THE SERVICE AND ANY CONTENT THEREON, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF SUCH NEW POD CITY PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEW POD CITY’S LIABILITY, AND THE LIABILITY OF ANY OTHER NEW POD CITY PARTIES, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF THE FEES YOU HAVE PAID US AND U.S. $100.
Third Party Disputes
TO THE FULLEST EXTENT PERMITTED BY LAW, ANY DISPUTE YOU HAVE WITH ANY THIRD PARTY ARISING OUT OF YOUR USE OF THE SERVICE, INCLUDING, BY WAY OF EXAMPLE AND NOT LIMITATION, ANY CARRIER OR OTHER USER, IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE THE NEW POD CITY PARTIES FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
To the fullest extent permitted by law, you agree to indemnify and hold New Pod City, and its officers, directors, employees, agents, successors, and assigns harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected to (a) your access, use, or misuse of the Service or New Pod City Content; (b) your User Content; or (c) your violation of this EULA. New Pod City will use reasonable efforts to notify you of any such claim, action or proceeding for which it seeks an indemnification from you upon becoming aware of it, but if New Pod City is unable to communicate with you in a timely manner because of an inactive e-mail address for you, then your indemnification obligation will continue notwithstanding New Pod City’s inability to contact you in a timely manner. New Pod City reserves the right, in its sole discretion, to assume the exclusive defense and control of any matter that is subject to indemnification under this Section at your sole expense. In such case, you agree to cooperate with any reasonable requests to assist New Pod City’s defense of such matter.
Term of the EULA
As between you and New Pod City, the Term of this EULA commences as of your first use of the Service and continues until the termination of this EULA by either you or New Pod City.
15. Consent to Electronic Communications
If you have any comments, complaints, suggestions about this EULA or the Service or otherwise would like to contact us, then you can contact New Pod City by email at NewPodCity@gmail.com or by U.S. post at 247 East Front Street, Trenton, NJ 08611.