Updated: June 20, 2023

These Wildcast Advertising Terms (these “Ad Terms”) are entered into by and between you and Wildcast, Inc. (collectively, with our affiliates and subsidiaries, “Wildcast,” “us,” or “our”), and, together with the Terms and Conditions, any Order (as defined below) or Placement Offer (as defined below), as applicable, entered into hereunder, and any other terms or conditions made available to you at the time of acceptance, govern your access to and use of the Wildcast Advertising Platform (the “Platform”) and related Services (as defined below), whether as an Advertiser (as defined below) or a Podcaster (as defined below).  

By using the Platform or Services or otherwise clicking the checkbox to accept these Ad Terms when this option is made available to you, you accept and agree to be bound by and comply with these Ad Terms. If you accept these Ad Terms on behalf of a company or other legal entity, then you represent and warrant that you have the authority to bind such company or other legal entity to these Ad Terms. If you do not have such authority, or if you do not accept and agree with these Ad Terms, then you may not use the Platform or the Services.

Table of Contents:

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  1. Certain Defined Terms.
    1. Ad” means an advertisement or commercial message for insertion, placement and distribution via Podcasts.
    2. Advertiser” means a person engaging Wildcast for Services and paying for Ads.
    3. CPM” means cost per 1,000 impressions.
    4. Intellectual Property” means (i) copyrights, moral rights, performance rights, database rights and rights in designs, (ii) trade names, trademarks, service marks, goodwill, rights in get-up and trade dress, rights to sue for passing off, and rights to use for unfair competition, (iii) patents and rights in inventions, (iv) rights in know-how, confidential information and trade secrets, (v) any other intellectual property rights, indulging, without limitation, all rights and interests in domain names and social media accounts and (vi) all rights that are similar or equivalent to any of the foregoing, in each case, anywhere in the world and whether registered or unregistered (including, without limitation, applications, rights to apply and rights to claim priority).
    5. Make Good” means the re-performance or re-recording of an Ad to meet the requirements of the applicable Campaign.
    6. Minimum Reach” means the minimum number of impressions an Ad must deliver.
    7. Order” means an Advertiser Order Agreement, purchase order, order form, proposal or other written agreement between Wildcast and Advertiser authorizing the performance of Services for a Campaign (as defined below). 
    8. Placement Offer” means an offer by Wildcast delivered through the Platform or other method of communication determined by Wildcast to a Podcaster to place an Ad in a Podcast in accordance with the requirements of the applicable Campaign.
    9. Podcast” means: (i) any and all audio (including, without limitation, all bonus material) associated with the podcast show hosted, distributed and/or monetized by a Podcaster; (ii) any and all elements related to the RSS feed used to distribute the Podcast audio files; (iii) any and all related Podcast interactive media; and (iv) any and all audiovisual content created using any part of the audio described in item (i).
    10. Podcaster” means the podcast creator, host of or voice associated with the applicable Podcast.
    11. Podcaster Content” means any and all Podcasts, related data, metadata, files, audio files, attachments, cover art, Podcast imagery, text, commercial messages and other content related to the applicable Podcast, including any of the foregoing uploaded or submitted to the Platform and related Intellectual Property.
    12. Services” means the Ad placement, podcast matching and other services to be provided by Wildcast hereunder to Advertiser or Podcaster, as applicable, as more particularly described in applicable Orders or Placement Offers, as applicable.
  2. Agencies and Other Representatives.  If the party accepting these Ad Terms is an agency or other entity representing or acting on behalf of an Advertiser or Podcaster, as applicable (“Agency”), then it agrees that: (a) Agency is a duly authorized representative of such Advertiser or Podcaster and is authorized to enter into these Ad Terms and bind such Advertiser or Podcaster to all commitments in these Ad Terms and any Order or Placement Offer, as applicable; and (b) Agency shall be liable for such Advertiser’s or Podcaster’s responsibilities and obligations under these Ad Terms and any Order or Placement Offer, as applicable.  
  3. Platform Participation. Wildcast reserves the right to refuse any Advertiser’s or Podcaster’s participation in the Platform.  Wildcast may suspend your access to, or use of the Platform or any Services if: (a) in Wildcast’s sole discretion, such action is necessary to prevent errors, harm or damage to Wildcast, the Platform, the Services or any person; (b) you attempt to access or use or otherwise access or use the Platform or any Services in an unauthorized manner, including, without limitation, in violation of these Ad Terms, any Policies or applicable Law; (c) you breach or violate any of these Ad Terms, any Policies or applicable Law. You acknowledge and agree that Wildcast does not endorse any Podcaster or Advertiser or produce any Ad or Podcast in connection with Campaigns. Wildcast is not responsible for any content, messaging or other information included in or related to Ads or Podcasts, including, without limitation, any Ad content, Podcaster Content or Advertiser Content. 
  4. Policies. You agree to comply with all applicable Platform and other Wildcast policies, specifications and other requirements set forth in or referenced in any Order or Ad Placement Offer, as applicable, or otherwise made available to you or posted online by Wildcast from time to time (collectively, “Policies”). Such Policies may include, without limitation, content policies, community guidelines, FAQs, Podcast, Ad and Campaign content standards (including those set forth in our Terms and Conditions), technical specifications and other policies for Advertisers and Podcasters. You acknowledge and agree that, unless expressly agreed by Wildcast in writing in each case, you may not use the Platform or any Services to promote slanderous, libelous or defamatory materials, deceptive materials, violence, the use of firearms, discrimination of a protected group (whether based on race, skin color, sex, religion, nationality, disability, sexual orientation, age or similar category), illegal activities, hate speech, pornography, profanity, obscenity, sexually explicit material, alcohol, online gambling, contests, games of chance, sweepstakes, pharmaceuticals, financial services, political campaigns, eco or green claims, health or dietary supplemental products. 
  5. Advertiser Terms.
    1. Orders; Services. By entering into an Order, Advertiser authorizes Wildcast to distribute the applicable Ad(s) via Podcasts as part of the corresponding advertising campaign (“Campaign”) and to otherwise make Placement Offers and to perform the Services for such Campaign. Wildcast will use commercially reasonable efforts to perform the Services in accordance with these Ad Terms and the corresponding Orders. Each Order will specify or reference, as applicable,      the Campaign details and requirements, including the Campaign start date, Campaign end date, desired audience demographics or targeting criteria, Campaign budget, Ad details (whether in the Order or Advertiser’s Platform dashboard) and such other information the parties deem necessary for inclusion in the Order. Each Order, once signed by both parties, will become a part of these Ad Terms and is subject to all of the terms and conditions herein, except to the extent expressly set forth in such Order. 
    2. Ad Materials. Unless otherwise set forth in an Order, Advertiser shall provide all materials for Ads, including, without limitation, as applicable, all copy, scripts, scheduling instructions, audio content, audiovisual materials, active URLs, data and such other materials, content and information required for the Ads and Campaign (“Ad Materials”). Advertiser acknowledges and agrees that Wildcast may, in its sole and absolute discretion, reject any Ad Materials, including, without limitation, for unsatisfactory quality, objectionable or unlawful content, incorrect price or other incorrect or inaccurate information, or if the Ad Materials violate any Policies, applicable laws, rules, regulations or applicable self-regulatory codes of conduct (collectively, “Laws”). Advertiser represents and warrants that (i) it has all necessary licenses, rights, consents and clearances to use the Ad Materials and to enable Wildcast and Podcasters to display, publish, transmit and distribute the Ad Materials as contemplated herein, including paying all applicable royalties, payments and fees (e.g., performing rights society fees), and (ii) the Ad Materials do not violate any Laws. Advertiser will indemnify, defend, and hold Wildcast and each applicable Podcaster harmless from and against any and all third-party claims or liabilities arising out of or relating to the Ad Materials and the products and services they advertise. 
    3. Cooperation. Advertiser shall provide copies of or access to all information, materials and Advertiser Materials as Wildcast may reasonably request in order to perform the Services or otherwise carry out its obligations hereunder in a timely manner, and ensure that all Advertiser Materials are complete and accurate in all material respects. Advertiser shall respond promptly to any request from Wildcast, including to provide such cooperation, assistance, direction, information, approvals, authorizations or decisions that are reasonably necessary for Wildcast to perform the Services or otherwise carry out its obligations hereunder.  Wildcast shall not be responsible for any delay or failure by Advertiser to provide the cooperation contemplated under this provision.
    4. Podcast Matching. Wildcast will use reasonable efforts to match Advertiser with Podcasters that Wildcast determines in its reasonable discretion meet the Campaign requirements set forth in each Order; provided that, Advertiser acknowledges and agrees that Wildcast does not represent or warrant or otherwise guaranty: (i) that any Podcaster will accept any Placement Order for Advertiser’s Campaigns; (ii) that each Podcast will meet all of the requirements of the Campaign; or (iii) the number of Podcast episodes in which the applicable Ad(s) may run or the Minimum Reach that may be achieved. 
    5. Ad Placement Review. Unless otherwise set forth in an Order, Advertiser will have fourteen (14) days from its receipt of an Ad placement for a Podcast to decline such Ad placement. If Advertiser fails to decline such Ad placement via the Platform within such fourteen (14) day period, then such Ad placement shall be deemed accepted by Advertiser.  Advertiser may only decline an Ad placement if Advertiser reasonably determines in good faith that the Ad (i) does not materially comply with the Campaign requirements or (ii) does not comply with Wildcast’s Ad quality requirements. If Advertiser declines an Ad placement pursuant to this provision, then the Advertiser may request a Make Good from the applicable Podcaster or the Podcaster may elect to forfeit any payment for such Ad placement. Any Make Good will be submitted to Advertiser for review and acceptance pursuant to this provision. 
    6. Reporting. For each Campaign, Wildcast will provide Advertiser with regular written status reports, to include the following details: participation podcasts, links to published advertisements, confirmed listener metrics, number of ad placements, number of unique podcasts participating, participating podcast category distribution. Advertiser acknowledges and agrees that, unless otherwise set forth in an Order, Wildcast’s impression, reach and other reporting statistics for each Campaign shall govern and control over Advertiser’s statistics or those of any third-party ad tracking, performance or similar service.
    7. Campaign Budget; Fees. Advertiser will designate its budget for each Campaign in the applicable Order (“Campaign Budget”).  Advertiser agrees to pay to Wildcast, upon signing of such Order, an amount equal to the applicable Campaign Budget, which Wildcast will use for the payment of its fees and to pay Podcasters for serving Ads under Placement Offers. Wildcast’s fees and Podcaster fees will be set forth in the corresponding Order. Unless otherwise set forth in an Order, at the end of or throughout the applicable Campaign, Wildcast will charge Advertiser fees for delivered impressions and applicable Wildcast fees, by deduction of such amounts from the Campaign Budget. Unless otherwise set forth in an Order, the fees for each Campaign will be equal to or less than the applicable Campaign Budget. All fees and charges for impressions are based on Wildcast’s reporting statistics and applicable billing metrics. In the event that a portion of the Campaign Budget remains unused after payment of all fees and amounts due to Wildcast hereunder and completion of a Campaign, Wildcast will promptly return to Advertiser such unused portion of such Campaign Budget. Advertiser acknowledges and agrees that, amounts paid to Podcasters from the Campaign Budget are non-refundable.
    8. Payment Methods. Unless otherwise set forth in an Order, in order to run Campaigns through Wildcast, Advertiser must provide payment information in a form of payment that is currently made available or accepted by Wildcast. Advertiser represents and warrants to Wildcast that any payment information provided to Wildcast or its third-party payment processors is true, accurate and complete and Advertiser shall keep such information up to date at all times. If Advertiser pays with a credit card or other payment card, it will be required to provide Wildcast’s third-party payment processer with a valid payment card number and associated payment information verifying Advertiser’s authorization to use such payment. By submitting information to such third-party payment processor, Advertiser authorizes Wildcast and the third-party payment processor to charge the card or other payment method for the charges and fees incurred with Wildcast. The third-party payment processor may run one or more payment card authorization checks on a card before it is charged. Advertiser authorizes Wildcast and/or the third-party payment processer to store Advertiser’s payment card information, and, if necessary, to continue billing and charging the payment card until the payment for Services and other amounts due hereunder have been fulfilled.  If Wildcast or its third-party payment processor does not receive payment from Advertiser’s credit card or other payment card issuer or agents, then Advertiser remains obligated and agrees to pay all amounts due upon request from Wildcast or its agents.
    9. Payment Terms. Unless otherwise set forth in an Order, all fees for Services and payment of the corresponding Campaign Budget are due upon signing of such Order.  Any amounts due to Wildcast under these Ad Terms not received by the due date will be subject to a late fee of 1.5% per month, or, if less, the maximum amount then permitted by law. In the event of any failure by Advertiser to make any payment that is not otherwise disputed in good faith, Advertiser acknowledges and agrees that Advertiser shall be responsible for all reasonable costs and expenses (including collection agents and reasonable attorneys’ fees) incurred by Wildcast in collecting such amounts.  Advertiser is responsible for paying and withholding all sales, value added or other taxes, duties and charges in connection with these Ad Terms, use of the Platform and the Services, other than taxes based on Wildcast’s income.
  6. Podcaster Terms.
    1. Podcast Metrics and Demographics. Podcaster shall provide to Wildcast such impression and reach metrics, Podcast details, listener demographics and other information as Wildcast may request from time to time and in the form requested by Wildcast. Podcaster represents and warrants that any such information provided to Wildcast is true, accurate, unmodified and complete and Podcaster shall be responsible for all such information.  If Podcaster misrepresents or falsifies any such information, Wildcast may immediately terminate Podcaster’s participation in the Platform without liability and without payment of any fees. 
    2. Ad Placement Offers. Wildcast may, from time to time, offer to Podcaster the opportunity to place Ads in Podcaster’s Podcasts pursuant to Placement Offers. Podcaster has the right to refuse any Placement Offer, but, where Podcaster has accepted a Placement Offer, Podcaster shall perform the Ad placement and other activities set forth in such Placement Offer. Placement Offers are subject to the terms and conditions set forth in these Ad Terms, unless expressly modified within the applicable Placement Offer. Upon Podcaster’s acceptance of a Placement Offer, such Placement Offer shall become binding and a part of these Ad Terms. Podcaster acknowledges and agrees that nothing herein requires Wildcast to secure any Ad opportunities for Podcaster or otherwise make any Placement Offers to Podcaster. 
    3. Running Ads. Podcaster agrees to make the applicable Ads available in applicable Podcast episodes in accordance with the terms of the Placement Offer and any requirements of the applicable Campaign, including any Campaign deadline. If the Placement Offer contemplates a Podcaster or host-read Ad, then Podcaster shall promptly perform, record and create such Ad in accordance with the specifications and other requirements set forth in the Placement Offer and as required by the applicable Campaign. Podcaster shall submit to the Platform each Ad placement for review and acceptance by the applicable Advertiser pursuant to Section 5(e) hereunder. In the event that an Ad placement is not accepted by such Advertiser, then Podcaster agrees to promptly perform a Make Good to rectify the Ad placement or otherwise decline such Make Good opportunity and forfeit any fees that Podcaster has earned or may earn for such Ad placement.  If Podcaster fails to perform a Make Good or to decline such Make Good opportunity within fourteen (14) days of receipt of notice thereof, then Podcaster shall be deemed to forfeit any fees that Podcaster has earned or may earn for such Ad placement. 
    4. Ad Reporting. Podcaster shall provide to Wildcast such reports and information as Wildcast requests from time to time in connection with any Placement Offer.  Such reports and information include, without limitation, proof of Ad placement impressions, direct reach, audience demographics and other Podcast statistics helpful or necessary for Wildcast to determine Podcaster’s compliance with these Ad Terms and any Placement Offer. Podcaster may only report impressions for Podcast episodes that the applicable Ad was completely and accurately placed on. Podcaster represents and warrants that any such information provided to Wildcast is true, accurate, unmodified and complete and Podcaster shall be responsible for all such information.  If Podcaster misrepresents or falsifies any such information, Wildcast may immediately terminate Podcaster’s participation in the Platform without liability and without payment of any fees.
    5. Fees. Podcaster will be paid a fee for each successful Ad placement as set forth in the corresponding Placement Offer.  Unless otherwise set forth in the applicable Placement Offer, Podcaster fees are calculated on a CPM basis and the maximum fee that may be earned for an Ad placement is dependent on Podcaster’s estimated reach tier [Link to Podcaster Payout Calculation Page]. You acknowledge and agree that no fees for Ad placements are earned until such time as the requirements of the corresponding Placement Offer are met, including any reporting and Minimum Reach requirements and acceptance of such Ad placements by the corresponding Advertiser, in each case as reasonably determined by Wildcast in its sole discretion. Podcaster further acknowledges and agrees that (i) the fees that Podcaster may receive in connection with a Placement Offer depend on, among other things, the Podcast’s actual reach and compliance with these Ad Terms and the requirements set forth in the corresponding Placement Offer, and, as such, Wildcast makes no representation, warranty or guaranty that Podcaster will receive any amount of fees hereunder unless such conditions are met and (ii) Podcaster is fully responsible for reporting and paying all taxes and related fees for any payment due to or received by Podcaster hereunder and Podcaster shall fully indemnify Wildcast for any claims related thereto. Wildcast may (x) withhold any amount from any fees or other amounts paid or payable hereunder as required by applicable Law, and (y) issue to Podcaster an IRS Form 1099 for any amounts paid to Podcaster hereunder. Podcaster shall submit to Wildcast a valid Form W-9 prior to receipt of any payment hereunder.
    6. Payment Terms. Unless otherwise set forth in a Placement Offer, any fees earned by Podcaster for Ad placements pursuant to a Placement Offer will be paid by Wildcast to Podcaster within thirty (30) days following the month during which the applicable Campaign was completed.  Podcaster must provide Wildcast or its third-party payment processor with complete and accurate payment information in order to receive any earned fees hereunder. 
  7. Ownership and Rights.
    1. License to Advertiser Materials. Advertiser grants to Wildcast a limited, non-exclusive, royalty-free license during the Term to copy, sublicense (including to Podcasters), edit, transmit, adapt, modify, encode, distribute, store, archive, display, publicly perform and otherwise use, in whole or in part, the applicable Advertiser Materials and related Intellectual Property (as defined below) to the extent necessary or desirable to provide the Services and perform its obligations hereunder. For purposes of these Ad Terms, “Advertiser Materials” means, collectively, the Ad Materials and related Intellectual Property, including Advertiser’s trademarks, service marks and other brand features, any Assigned Ads and such other Advertiser content, information and materials which Advertiser makes available to Wildcast hereunder. Advertiser Materials shall not include any Wildcast Materials or any Intellectual Property therein.
    2. Ownership of Advertiser Materials. Unless otherwise set forth in an Order, you and Wildcast acknowledge and agree that Advertiser and its licensors are and shall remain the sole and exclusive owner of all right, title and interest in and to any Advertiser Materials, including all related Intellectual Property. 
    3. Assignment of Ads. Subject to Podcaster’s rights in Podcaster Content, Podcaster hereby irrevocably assigns and agrees to assign to the applicable Advertiser all right, title and interest that Podcaster may have in and to any Ads, whether currently existing or conceived, created or otherwise developed later, including related Intellectual Property Rights (“Assigned Ads”). Advertiser may use the Assigned Ads solely in the form provided to Advertiser and may not modify or change such Assigned Ads in any manner or create derivative works incorporating such Assigned Ads without the prior written approval of Wildcast in each case.  Advertiser shall not use the Assigned Ads for any purpose that is unlawful or otherwise prohibited by these Ad Terms.
    4. Ownership of Podcaster Content. As between or among Wildcast, Advertisers and Podcasters, all Podcaster Content is owned by or validly licensed by the applicable Podcaster to which it relates. Unless otherwise set forth in an Order or Placement Offer, as applicable, neither Wildcast nor any Advertiser receives any ownership rights, nor has any responsibility over, any Podcaster Content.  Podcaster acknowledges and agrees that all Podcaster Content remains Podcaster’s sole responsibility. Podcaster acknowledges and agrees that Podcaster holds the necessary rights (including, but not limited to, rights to any sound recordings and/or musical works, lyrics, compositions, etc.) included in the Podcaster Content. 
    5. License of Podcaster Content. Podcaster hereby grants to each of Wildcast and the applicable Advertisers a non-exclusive, sub-licensable, irrevocable, fully paid, royalty free, worldwide license to use, copy, digitally transcode, transcribe, transmit, modify, publicly perform, display publicly, communicate, distribute and otherwise make use of the Podcaster Content for purposes of providing or utilizing the Services or otherwise to perform its obligations hereunder. Podcaster hereby agrees that Wildcast shall have the right to use any and all Podcast cover art, imagery and other branding materials for the marketing and promotion of the Platform and Wildcast’s services, including in connection with any public relations, marketing campaigns, sales pitches and on Wildcast’s websites and social media profiles.
    6. License to Platform. Subject to your compliance with these Ad Terms, Wildcast hereby grants to you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license, for the duration of the Term, to access and use the Platform in accordance with these Ad Terms, solely in the manner enabled by Wildcast.
    7. Ownership of Wildcast Materials.  Wildcast is and remains the sole and exclusive owner of the Platform and all other Wildcast Materials, including, without limitation, all Intellectual Property therein or thereto.  Except for the limited license to use the Platform set forth herein, Wildcast reserves any and all rights not expressly granted to you herein.  These Ad Terms do not confer upon you any right to, or in respect of, the Platform, any other Wildcast Materials or any other technology, software, information or materials of Wildcast. Wildcast expressly reserves all right title and interest in and to the Platform and all Wildcast Materials.
    8. Data.  You acknowledge and agree that Wildcast may use and disclose any data collected in connection with the operation of the Platform or performance of Services and for any lawful purpose, including, without limitation, to: (i) provide the Platform and Services and to fulfill its obligations and enforce its rights in connection with these Ad Terms, any Order or any Placement Offer; (ii) disclose such data to its third-party service providers and affiliates that assist Wildcast in making the Platform available and performing the Services, as is reasonably necessary for such assistance; (iii) disclose such data as may be required by applicable Law or legal process; (iv) improve the Platform and Services and any other Wildcast Materials; and (v) disclose such data where it is aggregated with data unrelated to you and is not identified as relating to you. You further acknowledge and agree that you may only use any data collected or received by you in connection with the Platform or Services solely to carry out your obligations under these Ad Terms.  Your use of the Platform and Services may be conditioned upon your acceptance of any data processing, data sharing or similar terms made available to you from time to time.
  8. Platform Limitations and Modifications.  Wildcast will use reasonable efforts to keep the Platform and related Services operational; provided, however, that Wildcast makes no assurances, representations or warranties that the Platform or Services will be available continuously or on a 24x7x365 basis.  Certain technical difficulties, maintenance or other issues may result in temporary interruptions. Wildcast reserves the right, periodically and at any time, to modify or discontinue, temporarily or permanently, any functions and features of the Platform or Services with or without notice, and without liability to you, except where prohibited by law, for any interruption, modification or discontinuation of the Platform or Services or any function or feature thereof.  
  9. Compliance with Laws; Industry Standards. Each party shall at all times: (a) comply with all Laws applicable to the operation of its business and to these Ad Terms and its performance hereunder; and (b) comply with applicable industry standards and self-regulatory guidelines and best practices in connection with these Ad Terms and its performance hereunder. 
  10. Term and Termination
    1. Term. The term of these Ad Terms (the “Term”) begins upon your acceptance and ends up on the expiration or termination hereof.  
    2. Termination. Unless set forth in an Order or Placement Offer, as applicable, you may terminate these Ad Terms upon fourteen (14) days’ prior written notice to Wildcast. Wildcast reserves the right to immediately terminate these Ad Terms, including any Order or Placement Offer, for any reason or no reason upon written notice to you. These Ad Terms and any related Order or Placement Offer, as applicable, will automatically terminate in the event that you deactivate or delete your Platform account. 
    3. Effects of Termination. Advertisers shall remain liable for any fees due and amounts otherwise incurred up until the effective date of termination, including for any Ads served as of such date, and for any fees for Services and Ads accepted on a non-cancelable basis. All rights and obligations of the parties hereunder shall terminate upon the expiration or termination of these Ad Terms, provided that the rights accruing to Wildcast prior to such expiration or termination, together with Sections 1, 7, 10, 11, 12, 13, 14, 15 and 16, shall survive any such expiration or termination.  Without limiting the foregoing, Wildcast may deactivate your Platform account and access upon any expiration or termination of these Ad Terms. 
  11. Warranties. Each party represents and warrants to the other that: (a) it has the full power and authority to enter into these Ad Terms and the Orders or Placement Offers, as applicable, entered into hereunder; (b) these Ad Terms and the performance of its obligations under these Ad terms do not violate any other agreement to which it is a party; (c) these Ad Terms, together with all Orders and Placement Offers, as applicable, constitutes a legal, valid and binding obligation of such party.
  12. Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN THESE AD TERMS, THE PLATFORM, SERVICES, TECHNOLOGY, MATERIALS AND INTELLECTUAL PROPERTY RIGHTS PROVIDED BY WILDCAST ARE PROVIDED “AS IS” AND WILDCAST DOES NOT MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, AND HEREBY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE OR TRADE. WILDCAST AND ITS SUPPLIERS, LICENSORS, AFFILIATES AND PARTNERS NO NOT WARRANT THAT THE PLATFORM OR THE SERVICES WILL BE CORRECT, UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS WILL BE CORRECTED. WILDCAST DOES NOT WARRANT THE RESULTS OF USE OF THE PLATFORM OR SERVICES OR THE AMOUNT OF REVENUE YOU WILL BE ABLE TO DERIVE IN CONNECTION THEREWITH OR THE PERFORMANCE OF ANY AD OR CAMPAIGN.
  13. Indemnification. You shall indemnify, defend and hold Wildcast, its affiliates and any of its or their directors, officers or employees harmless from any and all liabilities, damages and/or costs (including, but not limited to, reasonable attorneys’ fees) in connection with any claim or allegation made by a third party due to, arising out of or related to: (a) your breach of these Ad Terms (including any breach of any representation or warranty herein), violation of applicable Law or violation or misappropriation of any third party right; (b) any and all information you provide to Wildcast (including, without limitation, all Podcast Content, Advertiser Materials and Confidential Information, as applicable); and (c) your negligence or willful misconduct.  Wildcast will promptly provide you with notice of the claim to which indemnification hereunder is required, except that any failure of Wildcast to provide this notice promptly only relieves you of your responsibility pursuant to this provision to the extent you are materially prejudiced by the delay. You acknowledge and agree that you may not agree to any settlement of any claim that admits fault by Wildcast or otherwise purports to bind Wildcast without Wildcast’s prior written consent.
  1. Limitation of Liability. IN NO EVENT SHALL WILDCAST BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST BUSINESS, REVENUE OR PROFITS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT WILDCAST WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. TO THE EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT SHALL WILDCAST’S AGGREGATE LIABILITY AND DAMAGES UNDER THESE AD TERMS OR OTHERWISE RELATED TO YOUR USE OF THE PLATFORM OR THE SERVICES EXCEED THE SERVICE FEES PAID TO WILDCAST FOR THE SERVICES GIVING RISE TO LIABILITY UNDER THESE AD TERMS DURING THE TWELVE (12) MONTHS IMMEDIATELY PROCEEDING SUCH CLAIM. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS AND DISCLAIMERS OF LIABILITY SET FORTH HEREIN SHALL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
  2. Confidentiality. Each party shall keep confidential all information and materials provided by the other party, including, without limitation, all non-public information and know-how of the other party disclosed by any party hereunder in writing, orally or by drawing or other form (“Confidential Information”). All such information disclosed by either party to the other, whether orally, in writing, by inspection or otherwise, shall be deemed to be Confidential Information of the disclosing party unless otherwise expressly agreed in writing by the party disclosing such information, provided that such information is marked as “confidential” or bears a similar legend or is provided under circumstances indicating that such information is confidential or that the receiving party knows, or reasonably should have known, is the Confidential Information of the disclosing party. Furthermore, these Ad Terms, the features and functionality of Platform and Services, as well as any information regarding planned modifications or updates thereto or future Wildcast products and services shall also constitute Confidential Information of Wildcast. Each party shall keep and instruct its employees and agents to keep Confidential Information confidential by using at least the same care and discretion as used with that party’s own confidential information, but in no case less than a prudent and reasonable standard of care. Neither party shall use Confidential Information other than for purposes of performing its obligations hereunder, as authorized hereunder or as authorized by the disclosing party. Information or materials shall not constitute Confidential Information if it is: (a) in the public domain through no fault of the receiving party; (b) known to the receiving party prior to the time of disclosure by the disclosing party; (c) lawfully and rightfully disclosed to the receiving party by a third party on a non-confidential basis; or (d) as demonstrated by documentary evidence, developed by the receiving party without reference to Confidential Information. Disclosure of Confidential Information shall not be prohibited if such disclosure is in response to a valid order of a court ordering such disclosure or is otherwise required by law. If any party, its employees or its agents breach or threaten to breach the obligations of this provision, then the affected party may seek injunctive relief from a court of competent jurisdiction without the posting of a bond, in addition to its other remedies, as the inadequacy of monetary damages and irreparable harm are acknowledged.
  3. Miscellaneous.
    1. Force Majeure. Except for payment obligations, neither party shall be liable for failure or delay resulting from a condition beyond either party’s reasonable control, including, without limitation, acts of God, government, terrorism, natural disaster, labor conditions and power failures. 
    2. Relationship of the Parties. The parties are independent contractors with respect to each other. These Ad Terms do not constitute and shall not be construed as constituting a partnership or joint venture among the parties hereto, or an employee-employer relationship. No party shall have any right to obligate or bind any other party in any manner whatsoever, and nothing herein contained shall give, or is intended to give, any rights of any kind to any third parties.
    3. Assignment. Neither party may assign any of its rights or obligations under these Ad Terms without the prior written consent of the other party, except that Wildcast may assign its rights and obligations hereunder without the consent of the other party in connection with any merger (by operation of law or otherwise), consolidation, reorganization, change in control or sale of all or substantially all of its assets or similar transaction. These Ad Terms inure to the benefit of and shall be binding on the parties’ permitted assignees, transferees and successors.
    4. Notices. The notice email addresses of each party hereto shall be the appropriate address for the receipt of notices, if any. Except as otherwise provided for herein, all notices shall be sent via electronic mail. Either party may change their notice email address or mailing address by providing written notice to the other party.
    5. Construction. These Ad Terms shall be fairly interpreted and construed in accordance with its terms and without strict interpretation or construction in favor of or against either party.  Section headings are for reference purposes only, and shall not be used in the interpretation hereof. 
    6. Severability; Waiver. If any provision, or portion thereof, of these Ad Terms is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, then such determination will not impair or affect the validity, legality, or enforceability of the remaining provisions of these Ad Terms, and each provision, or portion thereof, is hereby declared to be separate, severable, and distinct. A waiver of any provision of these Ad Terms will only be valid if provided in writing and will only be applicable to the specific incident and occurrence so waived. The failure by either party to insist upon the strict performance of these Ad Terms, or to exercise any term hereof, will not act as a waiver of any right, promise or term, which will continue in full force and effect.
  1. Governing Law. These Ad Terms shall be interpreted, construed, and enforced in all respects in accordance with laws of the State of California, without regard to the actual state or country of incorporation or residence of the parties. The United Nations Convention for the International Sale of Goods does not apply to these Ad Terms.
  2. Arbitration. You acknowledge and agree that the Arbitration Agreement set forth in the Terms and Conditions applies to these Ad Terms and any dispute, claim or controversy arising out of or related to these Ad Terms. 
  3. Entire Agreement. These Ad Terms, together with the Terms and Conditions, applicable Policies and all Orders and Placement Offers entered into hereunder, constitutes the final, complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes any and all prior or contemporaneous oral or written representations, understandings, agreements or communications between the parties concerning the subject matter hereof.  Without limiting the generality of the foregoing, in the event of any conflict between the terms and conditions set forth in these Ad Terms and the Terms and Conditions or any Policies, the terms and conditions most favorable to Wildcast shall govern and control.
  4. Changes to Ad Terms.  Wildcast may revise, modify and update these Ad Terms from time to time in our sole discretion. All changes to these Ad Terms are effective immediately when we post them and apply to all access to and use of the Platform and Services thereafter. Your continued use of the Platform and Services following the posting of revised, modified or updated Ad Terms means that you accept and agree to such changes. You are expected to check this page from time to time, so you are aware of any changes, as they are binding on you.