USER AGREEMENT (Updated Effective June 25, 2020)
This User Agreement shall take effect upon your first use of the Services (as defined below) of the Ossa (ah-sa) network, also known as the Ossa Collective network, whether as a visitor or following notice of our formal acceptance of your application for registration (as discussed below) or if you already have an Account (as defined below) after any update or modification of this User Agreement, as applicable. Throughout this User Agreement, the term “use” means and includes you communicating with us via physical (e.g., paper, mail), electronic (e.g, email, chat, text), or telephonic (e.g., voice (with or without video) by cellular, landline, or internet) communication technologies (hereinafter collectively “communications”) and/or interacting with or accessing our website www.ossa2020.wpengine.com (the “Ossa website”) via a computer (personal computer, laptop, tablet) or mobile device (cellular phone, smartphone, tablet).
PLEASE BE AWARE THAT THIS USER AGREEMENT IS A LEGAL DOCUMENT THAT YOU ARE AGREEING TO BE BOUND BY AND WHICH GOVERNS HOW CLAIMS THAT YOU AND WE MAY HAVE AGAINST EACH OTHER OR OTHER USERS ARE TO BE RESOLVED, AND, AS DESCRIBED BELOW, ARE LIMITED IN CERTAIN RESPECTS. SEE THE DISCLAIMER OF WARRANTIES, LIMITATION OF LIABILITIES, AND LEGAL DISPUTES SECTIONS BELOW. SEE ALSO THE AGREEMENT TO ARBITRATE AND AGREEMENT REGARDING CLASS ACTION PARTICIPATION.
The terms “Ossa,” “we,” “us,” and “our” and as used in this User Agreement and our Terms of Service (defined below) refers to Ossa and the Ossa Collective, an online business and platform connecting podcast hosts and producers with brand advertisers and marketers. Ossa is owned and operated by Heart of Gold US LLC d/b/a Ossa, 24 Railroad Avenue, PMB 125, Tenafly, NJ 07670, and utilizes technology licensed and/or rights obtained from third-party suppliers.
The term “Services” means and includes your communications with us and/or other users, your interactions with and access to the Ossa website and any software or information downloads you make from us, including but not limited to the communications and interactions discussed in this User Agreement, and for networking to create a community of podcast hosts and producers and providing business development services. Ossa offers different Services to different users and not all users are permitted access to all Services, which access Ossa controls in its sole discretion.
The term “Podcaster” means and includes any person or organization that produces and/or hosts audio content that can be streamed or downloaded for listening in real time or in time delay.
The term “Show” means and includes one or more episodes, programming and/or events (prerecorded or live) to be produced by a Podcaster and made available to a listener by streaming or downloading. For clarity, a Show can refer to a single episode or a collection of episodes that are related, depending on the context of usage.
The term “Brand” means and includes a person or organization that desires to advertise or market a product or service and their representatives.
The terms “Ad” and “Ads” mean and include a Brand’s advertising placement on and/or sponsorship of a podcast Show, as applicable in a given case.
By using the Services, you signify your assent and agreement to the terms and conditions of our Terms of Service and set forth in this User Agreement. If you do not agree to the terms and conditions of our Terms of Service and this User Agreement, you must not use the Services.
2. Version One Advisory
This User Agreement accompanies a first release of the Ossa website and platform which may not contain all the features or have all the hardware resources that we intend to implement. We have implemented and follow industry standard measures to protect against unauthorized access to personal information but recognize that no Internet site can fully eliminate security risks. Use of this Version One should be with consideration of these risks.
3. About Ossa
Ossa is a women’s podcast network on a mission to increase the visibility, influence and earning power of the women in the podcast industry.
Ossa provides cutting edge opportunities for Brands to connect with Ossa’s exclusive network of women in podcasting.
Ossa is also a network and online marketplace enabling Brand(s) to search for and identify Podcasters and podcasts for potential collaboration in a promotional capacity and/or hiring for the purposes of promoting their Brand, e.g., placing advertising with, or sponsoring of, Podcaster Shows (“Ad placement”). This is our initial business value add.
4. Using Ossa
You must be at least thirteen (13) years of age to use our Services. If you are under the age of thirteen (13), then you cannot use our Services. If you are between the ages of thirteen (13) and sixteen (16), before you can use any of our Services being made available to Podcasters or Brands you must have a parent or legal guardian register an Account for you.
Ossa for Podcasters
To obtain access to our Services being made available to Podcasters, you will be required to apply for and register an account for using such Services (an “Account”). Ossa may accept or reject your application in its sole discretion and we will provide you with notice of our decision. As part of the application process and continued membership going forward, you the Podcaster will be required to provide certain information about yourself and your podcast business, including download/listener information for each of your Shows, that we will request.
ALL INFORMATION THAT YOU THE PODCASTER PROVIDE TO OSSA ABOUT YOUR PODCAST BUSINESS MUST BE COMPLETE, ACCURATE AND TRUTHFUL, AND MUST KEPT UP-TO-DATE.
If Ossa accepts your application, you agree that all of the information you provide can be used by Ossa for legitimate business purposes, and, as determined by Ossa in its sole discretion, can be used to create a Podcaster Profile. As used herein, a “Podcaster Profile” is a compilation of data relating to each Podcaster user and each Show of such Podcaster user, including download/listener information. You also agree that your Podcaster Profile will be accessible to the internal Ossa team and may be made accessible to Brands who are registered Ossa users.
Ossa maintains the right at any time in its discretion to add to, subtract from, or revise the Podcaster Profile and the statistics and/or information about you and your Shows that we request for the Podcaster Profile, and you agree to provide reasonably promptly any additional information required. Ossa may provide a mechanism for you to review the accuracy of the information in your Account and your Podcaster Profile, and you may be requested to do so periodically, and to update your information as needed and as your podcast business evolves and to verify that your provided information is up-to-date and accurate.
You understand and agree that your Podcaster Profile will be made available in whole or in part to permitted Brand users using our Services (for example, to use our Services to decide whether to place Ads on your or other Podcaster Shows, and may be accessed on the Ossa website where it may be searched, seen and/or accessed by permitted users. You also understand and agree that Ossa may use your Podcaster Profile to suggest relevant networking opportunities relevant to your podcast business.
Ossa for Brands
To obtain access to our Services being made available to Brands, you will be required to apply for and register an Account on the Services. Ossa may accept or reject your application in its sole discretion and we will provide you with notice of our decision. As part of the application process, you will be required to provide certain information about yourself, your business and your Ad interests that we will request.
ALL INFORMATION YOU PROVIDE MUST BE COMPLETE, ACCURATE AND TRUTHFUL, AND MUST KEPT UP-TO-DATE.
If Ossa accepts your application, you agree that all of the information you provide can be used by Ossa for its legitimate business purposes, and, as determined by Ossa in its sole discretion, can be used to create a Brand Profile for use in connection with our Services and may be searched, seen and accessed by permitted users. As used herein a “Brand Profile” is a compilation of data for each Brand user that will be used by Ossa internal team for potential Ad, business and marketing opportunities.
If Ossa changes the constitution of the data that appears in a Brand Profile, which it may do at any time in its discretion, you may be requested to submit additional information to complete and update the revised Brand Profile. Ossa may provide a mechanism for you to review the accuracy of the information in your Account and Brand Profile, which you may be requested to do periodically, and to update your information as needed and as your business and Ad interests evolve, and to verify that your provided information is up-to-date and accurate.
The term “Profile” when used without a Podcaster or Brand modifier and in connection with a user, should be understood to mean a Podcaster Profile, a Brand Profile, or both, according to the context. Ossa welcomes your input regarding the particular information that should be included in a Profile. By using our Services and providing your feedback, you indicate your agreement that Ossa may use your suggestions for any purpose without liability or compensation to you.
Ossa’s policy is to provide all Podcasters with equal treatment and service and equal opportunity and visibility to Brands, and to treat all Brands equally and provide equal access to Podcasters.
In connection with accessing or using the Services, you will not:
- Seek to promote or advertise the sale of guns (including, without limitation, firearms, rifles, pistols) and gun accessories, tobacco products, and e-cigarette “smoking” devices. Incidental use of the foregoing items in advertising content, and advertising protesting the sale or promoting the regulation of the foregoing may be permitted or prohibited in our sole discretion.
- Promote hate speech or content that may hurt or harm others.
- Violate or avoid any laws, rights of a third party, or our systems, policies or determinations of or about your Account or Profile status.
- Provide or upload information or content or send messages containing information or content that is unlawful, inaccurate, misleading, untruthful, deceptive, defamatory, libelous, threatening, abusive, harassing, pornographic, lewd, violent, offensive, profane, false or is otherwise inappropriate as determined by us in our sole discretion.
- Stalk, harass, embarrass, insult, personally attack, threaten, abuse or seek to harm, or make negative comments that are connected to race, national origin, gender, sexual orientation, religion, or physical handicap
- Transfer your Account or Profile to another user without our prior consent (except in connection with the sale of all of your business assets related to the Account and Profile).
- Interfere with any other user’s Profile, Account, or provided information.
- Impersonate any person or falsely state or otherwise misrepresent your credentials, affiliation with any person, or the origin of any information you provide.
- Distribute any part of our Services in any medium without our prior express written consent.
- Transmit, distribute or post any spam, unsolicited or unwanted email or bulk electronic communications, viruses, worms, destructive code or any other technologies that may harm Ossa or the interests of or information about the users.
- Use any robot, spider, scraper, data mining tools, data gathering and extraction tools, or other automated means to access our Services for any purpose, except with the prior express written permission of Ossa.
- Alter, modify, or otherwise interfere with the working of our Services, or impose an unreasonable or disproportionately large load on our infrastructure or any other user’s infrastructure.
- Modify another website so as to falsely imply that it is associated with Ossa.
- Export or re-export any Ossa application or tool, except in compliance with the export control laws of the United States of America and any other relevant jurisdiction and in accordance with the posted rules and regulations.
- Infringe any Intellectual Property Rights that belong to or are licensed to Ossa. The term “Intellectual Property Rights” means and includes any copyright, trademark, patent, trade secret, idea, publicity, moral rights (including attribution and integrity), design, database, and/or other right of exclusion. For example, but not by way of limitation, conduct that may constitute infringement are reproducing, performing, displaying, distributing, copying, reverse engineering, decompiling, disassembling, or preparing derivative works from content that belongs to Ossa or someone who has licensed Ossa to use such Intellectual Property Rights.
- Infringe any Intellectual Property Rights that belong to third parties affected by your use of the Services or provide information or post content that does not belong to you or that you do not have the permission and right to provide or post.
- Commercialize any Ossa application or any information or software associated with such application, except with the prior express permission of Ossa.
- Harvest or otherwise collect information about users without their consent.
- Circumvent, avoid or defeat any technical measures, controls or limits we use to provide the Services.
- Use the Services for any illegal or unauthorized purpose.
You are responsible for keeping secure your password and answers to any security question we may employ. Ossa reserves the right to reject the use of a proposed email address or user name in its sole discretion. Ossa shall not be liable for any loss or harm you incur as a result of someone else using your password, either with or without your knowledge. You may be held liable for any losses incurred by Ossa, its members, officers, directors, employees and agents, arising from someone else’s use of your password. You agree to notify us promptly of any unauthorized use or theft of your password. We reserve the absolute right not to issue a password to any person or entity.
If we think you are abusing the Ossa platform, network or marketplace and/or our Services in any way, we may, in our sole discretion and without limiting other remedies, limit, suspend, or terminate your user Account and/or Profile, and access to our Services, delay or remove your provided information or content to the extent we believe it appropriate to do so, and take such other technical and legal steps to prevent you from using our Services in an abusive manner.
Violation or breach of any of the provisions or terms of this User Agreement may result in the termination of your Account and removing your Profile. While we prohibit certain conduct and content in connection with our Services, you understand and agree that we cannot be responsible for information and content provided, posted, submitted, transmitted, or otherwise made available through use of our Services or the conduct of other users. You further agree that nonetheless you may be exposed to such materials and that you use the Services at your own risk.
If you have an Account that has been inactive for a long time, we may cancel your Account, remove your Profile, or otherwise modify or discontinue your access to our Services.
Any user may report a violation of Services or breach of the User Agreement to email@example.com referencing “Violation” in the subject matter line, and agrees to fully cooperate with any ensuing investigation.
5. Ad Placement Services
Ossa’s Service includes arranging for Brand users to place Ads on Podcaster user Shows in accordance with the Brand user’s Campaign. As used herein, a “Campaign” means and refers to a defined schedule of Podcaster Shows that will incorporate the Brand’s Ad as set forth in an Accepted Booking Order (as defined below). The term “Booking Order” means and refers to a Brand user’s offered terms and conditions for placing its Ads , including, for example, the nature and form of the Brand’s Ad to be placed,the Ad duration, content, and timing/frequency of execution in Show(s) (e.g., number of Ads and number of Shows and when the Shows airing the Ad will be executed over a period of time), and the fee the Brand will pay for the Campaign, including the timing and amount of each payment included as part of the fee), which fee is referred to as a “Booking Fee.” An “Accepted Booking Order” is a Booking Order offered by a Brand to a Podcaster that has been accepted by the Podcaster, which acceptance has been communicated to, and in turn and acknowledged or confirmed by, the Brand offering the Booking Order.
AN ACCEPTED BOOKING ORDER IS THUS AN ACTUAL BINDING CONTRACT MADE DIRECTLY BETWEEN THE ACCEPTING PODCASTER USER AND THE BRAND USER WHOSE ADS WILL BE EXECUTED BY THE PODCASTER USER IN ACCORDANCE WITH THE CAMPAIGN, AND NOT WITH OSSA. OSSA MAY ACT AS AN AGENT OF A USER, BUT IS NEITHER A PURCHASER NOR SELLER OF ADS (EXCEPT IN THE CIRCUMSTANCES WHERE OSSA IS ACTING AS A PODCASTER USER OR A BRAND USER) AND OSSA SHALL HAVE NO RESPONSIBILITY OR LIABILITY FROM ANY ADS EXECUTED ON ANY PODCASTER SHOW.
NO USER HAS ANY CONTRACTUAL RIGHTS OR OBLIGATIONS IN CONNECTION WITH ANY BOOKING ORDER EXCEPT AS SET FORTH IN SECTIONS 13, 14, 15 AND 16 OF THIS USER AGREEMENT.
As a Podcaster, if offered an opportunity to participate in a Campaign, you may accept or reject an offered Booking Order in your sole discretion (i.e., for any reason or no reason). As a Brand, you may accept or reject a Podcaster who accepted an offered Booking Order, but you cannot make unreasonable demands and cannot use the threat of negative feedback or blacklisting to coerce or induce a Podcaster to accept an offered Booking Order, and attempting to do so or doing so would breach our Terms of Service and this User Agreement. Ossa’s policy statement is that a Podcaster can reject an offered Booking Order if the offering Brand is not in alignment with the Podcasters core values, if the timeline of execution is not reasonable, and if the product or service offered does not meet the Podcaster’s reasonable expectations of function, quality and reliability.
A Podcaster who is a party to an Accepted Booking Order is obligated to execute the Campaign of the Accepted Booking Order strictly in accordance with its terms, and to provide timely notice to Ossa of the execution of each Show in the Campaign including a link to the executed Show and the Ad time stamp information for the execution of the Ad in the Show.
A Brand who is a party to an Accepted Booking Order is obligated to pay in full the Booking Fee payment required by the Accepted Booking Order to Ossa as an agent for facilitating execution of the Campaign and payment to the Podcaster user and collecting Ossa’s commission. In the case that an Accepted Booking Order has a Booking Fee including a schedule of payments over time, each payment must be made in advance of the podcaster executing any Brand Ad associated with that payment. Ossa will manage podcasters and take care of their payment, and a Brand will never need to pay a podcaster directly.
Ossa’s role and limited obligations in connection with a Booking Order, an Accepted Booking Order, and a Campaign are to (i) communicate with a Brand User to develop a Booking Order, (ii) communicate with Podcasters regarding the suitability of a Booking Order, (iii) facilitate communications between the involved Podcaster(s) and Brand to facilitate an Accepted Booking Order and to execute a Campaign, (iv) receive, in response to an Accepted Booking Order , the full payment of the Booking Fee from the Brand, (v) distribute to the Podcaster the Podcaster’s share of the Booking Fee as the Podcaster executes Ads of the Campaign in accordance with the terms of the Accepted Booking Order, and (vi) refund to the Brand any portion of the Booking Fee associated with Podcaster’s failure or inability to fully execute the Campaign. It is understood and agreed that during the course of a Campaign, the Brand may in its sole discretion and for any reason, including but not limited to unsatisfactory performance, execution, or user experience, terminate the Campaign and the associated Accepted Booking Order to the extent that some or all of the contracted for Shows have not been executed.
Ossa may provide Profiles, a platform for connecting Brands and Podcasters, and guidance for Podcasters and Brands in our Services, and such information is purely informational for the users. In providing our Services, including but not limited to any Booking Order, Accepted Booking Order or Campaign, Ossa is not and does not act as a fiduciary to any user. Also, while Ossa may help facilitate the resolution of disputes regarding Accepted Booking Orders and Campaigns, Ossa is not responsible for the accuracy of Brand and/or Podcaster provided content and self-reported statistics or information, and does not guarantee the truth or accuracy of such information.
If we believe you are violating Section 15 (Non-Solicitation and Non-Competition) and/or Section 16 (No Ad Placements Outside of Ossa) of the User Agreement, you may be subject to a range of actions, including limits on and/or termination of your access to and use of our Services, restrictions on others access to your Profile, removal of your Profile, suspension of your Account, application of fees, damages, and recovery of expenses for monitoring and enforcement of these agreements.
Use of the Services does not transfer legal ownership or any license of rights as between a Brand and Podcaster user. The only rights involved are those set forth in the Accepted Booking Order to the extent that Accepted Booking Order is not terminated in whole or in part by the Brand user.
We have employed our creativity and efforts and invested in building the Ossa network and marketplace by, for example, bringing together Brands and Podcasters, and in providing our Services, which in turn provide particular advantages, efficiencies and benefits to our users. We don’t charge a membership fee to join, but we do charge for certain uses of our Services for which you obtain a tangible benefit (a “commission”). At present, we charge a commission that is a percent of the Booking Fee for advertising placements and sponsorships that arise from the use of our Services.
If you are a Brand user and have an Accepted Booking Order, you are obligated to pay the entire Booking Fee associated with that Accepted Booking Order (and Campaign) in full to Ossa within ten (10) business days of acceptance of the Accepted Booking Order. Payment may be made by any commercially acceptable method, including but not limited to payment through PayPal Holdings, Inc., wire transfer, ACH transfer, check, credit card or other payment method agreed upon by Ossa and the Brand.
If you are a Podcaster user and have an Accepted Booking Order, Ossa will remit payment, at the end of the month, to you for Ads executed in connection with that Accepted Booking Order Campaign within the given month, provided that Ossa first receives from Podcaster the Ad time-stamp information and Show link verifying the execution of each Ad in each Show. In the event that an Accepted Booking Order and associated Campaign is terminated prior to execution of any contracted for execution of an Ad in a Show, then Ossa shall not remit payment for any Ad in any Show that has not been executed, as verified by having received the Ad time-stamp information and Show link, as of the date of termination.
If you are a Podcaster user, you agree to have and maintain an account with PayPal Holdings, Inc., and to provide that account information to us, so that Ossa can distribute your share of Booking Fees via your PayPal account. This obligation may change in the future, and we may require that you provide us with another payment method in lieu of a PayPal account.
Except to the extent required by law, Ossa shall have no obligation or responsibility to withhold any portion of the Booking Fee distributable to a Podcaster user for tax or social security payment purposes. We may require you as a Podcaster user to provide us with proof and appropriate documentation that you are exempt from any such withholdings under any applicable law.
If you are a Brand user and your payment of the Booking Fee is late or your selected payment method fails, we may delay commencement of, or if commenced suspend the continued execution of any Campaign for which the Booking Fee is not timely paid or take steps to collect amounts owed by charging any alternate payment method on file with us, or by retaining collection agencies and/or legal counsel as we deem necessary in our discretion. In addition, you may be subject to and required to pay late fees. Ossa, or the collection agencies we may engage, may also report information about your delinquency to credit bureaus, and as a result, late payments, missed payments or other failed payments may be reflected in your credit report. You can dispute the accuracy of information provided to a credit bureau by Ossa by contacting us at firstname.lastname@example.org referencing “Finance” in the subject matter line, and by a collection agency by contacting that collection agency. You agree that your obligation to pay Booking Fees for Services already provided in a Campaign survives withdrawal or termination of your use of Services or termination of any unexecuted portion of an initiated Campaign, whether that termination is by your decision or our decision.
At present, use of Services is limited to transactions occurring in the United States of America (“U.S.”) and all transactions are to be completed in U.S. dollars.
We may change our commission percent of Booking Fees, and the Services for which we charge commissions, from time to time, and we will provide you notice of any such change. We will endeavor to provide you with notice of any such change in commissions at least 14 days in advance.
We strive to create a marketplace where Brand users can search for and identify an appropriate Podcaster user or group of Podcasters of interest to the Brand for Ad placement . We provide innovative search tools and may provide data analytics, and the results of any search will depend on a variety of factors, including without limitation the Profile and information a user provides.
Information or content you provide that violates any of Ossa’s policies may be modified, obfuscated or deleted at our discretion.
We may suggest revisions to your Profile and require changes to your Profile to improve our and/or your user experience. We may provide you with optional recommendations to consider when creating your Profile. Such recommendations may be based on information available to us but not to you, such as an analysis of Ad placement history of other users and performance history of other users having similar or related Profiles, although results will vary for different individual users. To drive opportunity, you agree that we may use your provided information and Booking Order, Accepted Booking Order and Campaign histories and your Profile for the benefit of other users, and we may anonymize your history and disclose it to other users.
To the extent that you provide information or content using the Services, whether directly or indirectly, you grant Ossa a worldwide, non-exclusive, perpetual, royalty-free, sublicensable right to use such information and content for the purposes discussed in this User Agreement, and to exercise any and all Intellectual Property Rights that you have in that information and content in connection with our provision of the Services as they exist currently or may exist in the future, in any media now existing or that may be existing in the future. To the fullest extent of the law, you waive your right to enforce against Ossa, its assignees, its sublicensees and their assignees, your Intellectual Property Rights in that information and content in connection with our provision of Services now or in the future.
You represent and warrant that, for all such information and content that you provide, you own or otherwise control all necessary rights to do so and to meet your obligations under our Terms of Service and this User Agreement. You represent and warrant that all such information and content is accurate and will be kept updated. You represent and warrant that use of any such information and content (including derivative works) by us, other users of the Services, or others in contract with us, and in compliance with this User Agreement, does not and will not infringe any Intellectual Property Rights of any third party.
Ossa reserves all rights not expressly granted in and to the Services and any and all content, information, materials, computer code, and software used in connection with the Services that is not provided by a user. The name “Ossa” and other Ossa trademarks, logos, designs, and phrases that we use in connection with our Services are trademarks, service marks, or trade dress of Ossa. They may not be used by you or another without the express written permission of, and only as permitted by, Ossa.
10. Notice for Claims of Intellectual Property Rights violations and Copyright Infringement
We respect intellectual property rights. We respond to notices of alleged copyright infringement under the U.S. Digital Millennium Copyright Act and may require you to provide certain information as a predicate for our commencing an investigation into an allegation by you of infringement. Ossa works to ensure that information and content on the Ossa website or available through our Services do not infringe upon the Intellectual Property Rights of third parties. If you believe that your Intellectual Property Rights have been infringed, please notify us at email@example.com referencing “Infringement Claim” in the subject matter line, and provide a description of the nature of the alleged infringement and, subject to your continued cooperation including the provision of certain additional information in response to our requests, we will investigate.
You agree to fully cooperate with us in connection with any investigation commenced regarding an allegation by a third party that your provided information or content infringes an Intellectual Property Right of a third party.
11 . Authorization to Contact You; Communication Channels
You agree that our use of any one consented-to communication channel, or by a posting on the Ossa website, is sufficient to comply with our obligation to provide you with any “notice” as may be required according to our Terms of Service and this User Agreement. You agree that all agreements, notices, disclosures and other communications that we provide to you, by physical or electronic technology means, at our discretion, satisfy any legal requirement that such communications be in writing. You specifically agree that any time you electronically transact, agree or consent in an electronic communication with us or another user, in connection with your use of the Services, it is intended to and is in fact an electronic signature that binds you as if you had physically signed on paper.
With respect to your receiving notice of any amendment to our Terms of Service or the User Agreement, which may be changed from time to time as discussed in Section 21 below, you agree that your subsequent use of our Services, other than to read the updated Terms of Service, constitutes your agreement to the modified terms and conditions of the Terms of Service as it then exists without further action by you.
Ossa aspires to be a destination network and marketplace for Podcasters and Brands who align with our core values of awareness, empowerment and respect, and our goals of inclusion, transparency and equal access. Nevertheless, we are a business and to remain viable and continue to provide our Services and reach our aspirations, preserve our value proposition for our investors, and protect your and our mutual interests, we will need to undertake some of our activities, communications, and Services under obligations of confidentiality with respect to certain information of us, you and other users.
For example, certain of our Services may involve monitoring, collecting and compiling, and analyzing your user experience over time, as well as the experience of other users, and generating various analytics that Ossa considers to be its proprietary and valuable work product and that will be used to evaluate, improve and enhance our Services. Ossa may in its discretion want to share some of its work product with you or other users under an obligation of confidentiality to enhance your (and their) user experience and improve our Services and its use by our users. You likewise may have proprietary information that you are willing to provide to Ossa for our use and/or share with other users under an agreement of confidentiality.
As used herein “Confidential Information” shall mean and include, without limitation, information relating to discoveries, developments, designs, improvements, inventions, formulas, software programs, processes, techniques, know-how, data, data analytics and data compilations whether or not anonymized, research techniques, customer and supplier lists, marketing, sales or other financial or business information, scripts, any and all derivatives, improvements and enhancements to any of the above, and other proprietary information of a similar nature. Confidential Information shall not include any information which (a) at the time of disclosure, is in the public domain through no fault of the receiving party; (b) the receiving party can show was in its possession at the time of disclosure or was independently derived or developed by the receiving party, and was not acquired, directly or indirectly, from the disclosing party or another person under an obligation of confidentiality to the disclosing party; or (c) was received by the receiving party from a third party having the legal right to transmit the same.
You and we acknowledge and agree that in connection with your use of the Services, each of us may choose to disclose to the other material designated “Confidential Information” and that such Confidential Information shall (a) be maintained by the receiving party in confidence using such care and protections that the receiving party applies to its similar confidential information and in any event no less than reasonable care and protections; (b) not be disclosed to any third party without the disclosing party’s prior written permission except as set forth in this User Agreement; and (c) not be used for any purpose other than as permitted by this User Agreement. The receiving party shall (d) use its best efforts to limit access to Confidential Information to those persons the disclosing party authorizes in advance and who have a need to know; and (e) return to the disclosing party all tangible documents and objects and copies thereof, and destroy all recorded media, containing Confidential Information, upon request by the disclosing party. Upon termination of your Account, you shall destroy and not duplicate or retain copies, summaries or extracts of any Confidential Information received from Ossa without prior written approval from Ossa.
In addition, you agree not to disclose any Confidential Information that belongs to anyone other than you that you do not have the right to use, and to maintain confidential and not use any Confidential Information disclosed to you to the extent that and for so long as such Confidential Information remains protectable as a trade secret, and in any event for no less than twenty-four (24) months following the termination of your Account.
Notwithstanding the provisions of this Section 13, you shall not be deemed in violation of this Section 13 for disclosing Confidential Information pursuant to a subpoena or court order or arbitrator demand, provided that you provide us with reasonable prior notice of such disclosure pursuant to subpoena, order or demand so that we or an interested third party may challenge such subpoena, order or demand.
14. Privacy of Others and Marketing
If Ossa provides you with information about another user, you agree you will use the information only for the purposes that it is provided to you. You may not disclose, sell, rent, swap or distribute another user’s information to a third party for purposes unrelated to the Services. In addition, you may not use information for marketing or promotion purposes, via electronic or other means, unless you first obtain the express consent of the specific user to do so.
15. No Ad Placement Outside of Ossa
Ossa is not an exclusive network and recognizes that its Podcaster and Brand users are free to operate outside of Ossa to find each other and arrange for, book and consummate Ad placements . However, we don’t allow users, Podcasters or Brands, to find each other on Ossa, and then complete their Ad placement transactions outside of Ossa.
Ossa has this policy because such Ad placement transactions that arise from or are related to the connectivity value proposition of Ossa Services, but completed outside of Ossa, may be an attempt to take advantage of the valuable Services Ossa provides, while avoiding payment of a commission due Ossa for use of the Ossa network Services, is unfair to the Podcasters and Brands who are using the Ossa network Services for the efficiencies and benefits it provides, and is unfair to Ossa who has invested in the network that brings together Podcasters and Brands and does not charge a membership fee to join the Ossa network.
You and we agree that in the case that a user, using the Services, identifies a counterparty user that leads to a transaction for an Ad placement that is completed without using the Services (i.e., outside of the Ossa platform), such conduct is a breach of the Terms of Service and this User Agreement. As a consequence of each such breach, we may temporarily or permanently suspend or terminate the Account of any user involved in such transaction, and you agree to pay us an amount of liquidated damages equal to the commission Ossa would have been entitled to receive had such Ad placement transaction been completed using the Services. You agree that this liquidated damages amount is a reasonable assessment of actual harm caused to Ossa for each such breach of the User Agreement.
16. Non-Solicitation and Non-Competition
In consideration of the business opportunity and the Confidential Information being disclosed to you in connection with your access to and use of the Services, and the benefits and value you will obtain from the Ossa network Services during the course of this User Agreement, and the goodwill that develops between Ossa and you and between you and other users of the Services with whom you may have communications, interactions, potential business opportunities contact, and may do business, you agree that for a period of twenty-four (24) months after the date you cease use of the Services, whether by your decision or our determination (the “termination date”), you shall not, within the U.S. (the “Territory”), directly or indirectly, solicit to contract with or contract with any other person known to you to be a user of the Services prior to or as of the termination date, in respect of placement of Ads on or in connection with any Podcaster Show. You understand and acknowledge that the covenants contained within this Section 16 are reasonable, narrowly tailored, and necessary to protect the confidential, proprietary information and business value and goodwill of Ossa. You further acknowledge and agree that such covenants do not prevent you from securing gainful appointment or employment, or joining another podcast network that connects brands to podcasters for Ad placement opportunities, prior to or subsequent to the termination date, and do not prevent you from contracting with any person for the placement of Ads on any Podcaster Show, provided that you and such person became known to each other independent of your use of the Ossa Services.
You further understand and agree that this Section 16 of the User Agreement is to be enforced to the fullest extent permitted by law.
- Disclaimer of Warranties and Limitation of Liability
Ossa seeks to keep our Services safe, secure and functioning properly, but we cannot guarantee the continuous operation of or access to our Services. Loading and changing information and Profiles and communication of Booking Order, providing notice of acceptances or rejections, Accepted Booking Orders, and Campaign executions and terminations, may not occur in real time. Such functionality is subject to delays beyond Ossa’s control.
You agree that we have no special relationship with or fiduciary duty to you, and your use of our Services are at your own risk, and that they are being provided to you on an “AS IS” and “AS AVAILABLE” basis. Thus, and to the extent permitted by applicable law, we make no representations and warranties about the Services or the information, materials, goods, or services appearing or offered on or in connection with the Services, including on the Ossa website and through other communication channels, or with respect to any websites or services linked from the Services, and exclude all express or implied warranties, terms and conditions about such Services, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, workmanlike effort, title, quiet enjoyment, by any course of conduct or usage of trade, no liens and no encumbrances, suitability to meet your needs, requirements or purposes, and non-infringement of Intellectual Property Rights. No oral or written information made available by or on behalf of us shall create any warranty.
In addition, to the extent permitted by applicable law, we (including any members, affiliates, officers, directors, employees, contractors and agents) are not liable, and you agree not to hold us responsible, for any damages or losses (including but not limited to, loss of money, goodwill or reputation, profits, or other intangible losses, or any special, direct, indirect, incidental, consequential or punitive damages) arising out of or resulting directly or indirectly from, whether based in tort, contract, negligence, strict liability or otherwise:
The information and content you provide (directly or indirectly) using the Services;
Your use of or inability to use our Services;
Guidance or recommendations provided by Ossa;
Delays or disruptions in our Services;
Viruses or other malicious software obtained by access or linking to or use of our Services;
Glitches, bugs, errors, or inaccuracies of any kind in our Services;
Damage to your software or hardware device(s) from the use of any Service;
The content, actions, or inactions of third parties, including Profiles listed using our services;
A suspension, termination, or other action taken with respect to your Account or breach of the User Agreement;
The duration or manner in which your Profile appears in search results;
Your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to this User Agreement or our policies.
To the extent that a particular jurisdiction does not allow the disclaimer of warranties or exclusion of liability or damages set forth above, then only to that extent such disclaimers and exclusions may not apply to you.
Notwithstanding the preceding paragraphs in this Section 17, if we are found to be liable to you, our liability to you is limited to the greater of any amounts owed to us based on your outstanding Accepted Booking Order(s), or the amount of commissions retained by us on Accepted Booking Orders associated with you in the six (6) months prior to the action giving rise to the liability.
Ossa controls and operates the Services from the U.S. and makes no warranty or representation that the Service is appropriate or available for use beyond the U.S. If you use the Services from locations outside the U.S., you are doing so on your own initiative and are responsible for compliance with any applicable local laws and regulations applicable to any transaction and use of Services.
If you have a dispute with another user, you release us (and our members, affiliates, officers, directors, employees, contractors and agents) from any and all claims, demands and damages (actual and consequential and punitive) of every kind and nature, known and unknown, arising out of, relating to or in any way connected to with such disputes. IN ENTERING INTO THIS RELEASE YOU EXPRESSLY WAIVE ANY PROTECTIONS (WHETHER STATUTORY OR OTHERWISE) THAT WOULD OTHERWISE LIMIT THE COVERAGE OF THIS RELEASE TO INCLUDE ONLY THOSE CLAIMS WHICH YOU MAY KNOW OR SUSPECT TO EXIST IN YOUR FAVOR AT THE TIME OF AGREEING TO THIS RELEASE.
You agree to indemnify, hold harmless and defend us (including our members, officers, directors, employees , contractors, and agents) from and against any claims, damages, liabilities, judgments, fines, interest, penalties, losses, costs, expenses and harms, including without limitation reasonable attorney fees and fees of other professional advisors, made by any third party related to or arising out of your use of Services, your breach of the Terms of Service and this User Agreement, your improper use of Services, your online conduct, your negligence, willful misconduct, or violations of the Intellectual Property Rights of any person, your breach of your confidentiality obligation, or your breach of any law or the rights of a third party. You shall not settle any such claim without our prior written consent. We also reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with us in asserting any available defenses.
20. Legal Disputes
THIS SECTION 20 IS IMPORTANT AND SHOULD BE READ CAREFULLY. IT CONTROLS AND AFFECTS YOUR RIGHTS AND IMPACTS HOW ANY CLAIMS BETWEEN YOU AND OSSA AND AGAINST EACH OTHER ARE TO BE RESOLVED.
As used in this Section 20, the term “Claim” means and includes any claim or dispute, whether legal or equitable in nature, that has arisen, or may arise, between you and Ossa (or a third party contractor or agent of Ossa) that relates in any way to or arises out of our Terms of Service or this User Agreement, your use of the Services, the actions of Ossa or its contractors or agents, or any search, Booking Orders, Accted Booking Orders or Campaigns involving, arising from, or relating to the use of the Services.
You and Ossa agree that any Claim will be resolved in accordance with the provisions set forth in this Section 20.
You agree that the laws of the State of New York, without regard to principles of conflicts of law, will govern our Terms of Service and any Claim, except as otherwise stated in this User Agreement. By using the Services, you agree to waive any Claim that may arise under the laws of other states, countries, territories or jurisdictions.
- Agreement to Arbitrate
You and Ossa agree that any Claim shall be resolved exclusively through final, binding, and individual arbitration, rather than in court. In this regard, the Federal Arbitration Act, not state law, governs the interpretation and enforcement of this Section 20.B (Agreement to Arbitrate).
- Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND OSSA AGREE THAT EACH OF US MAY BRING ONE OR MORE CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, OR REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. UNLESS BOTH YOU AND OSSA AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIM(S), AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, CLASS, OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OR BENEFIT OTHER USERS. If a court decides that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular Claim for relief, then that Claim (and only that Claim) must be severed from the arbitration and may be brought in court, subject to your and Ossa’s right to appeal the court’s decision. All other Claims will be arbitrated.
ii.Arbitration Procedures and Rules
Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individual basis that a court can award to an individual. An arbitrator should interpret and construe the Terms of Service as a court would. All issues are for the arbitrator to decide, except that issues relating to arbitrability, the scope or enforceability of Section 20.B, including the interpretation of Section 20.B.i (Prohibition of Class and Representative Actions and Non-Individualized Relief), and Section 20.C (Injunctive relief), shall be for a court of competent jurisdiction to decide.
The arbitration will be confidential, binding, and final, and conducted by the American Arbitration Association (“AAA”) under its rules and procedures then in effect, including the AAA Consumer Arbitration Rules (as applicable), as modified by this Section 20.B. The AAA’s rules are available at www.adr.org (the “AAA website”) or by calling the AAA at 1-800-778-7879. The use of the word “arbitrator” in this provision shall not be construed to prohibit more than one arbitrator from presiding over an arbitration; rather, the AAA’s rules will govern the number of arbitrators that may preside over an arbitration conducted under this Agreement to Arbitrate.
A party who intends to seek arbitration must first send to the other, by certified mail, a completed form Notice of Dispute (“NOD”). You may download a form NOD from the AAA website. The NOD to Ossa should be sent to Ossa, Attn: Ossa Notice of Dispute, Heart of Gold US LLC, 24 Railroad Avenue, PMB 125, Tenafly, NJ 07670. Ossa will send any NOD to you to the physical address we have on file associated with your user Account; it is your responsibility to keep your physical address up to date. All information called for in the NOD must be provided, including a description of the nature and basis of the Claim(s) being asserted and the relief sought.
Sending a NOD triggers a settlement period in which you and Ossa agree in good faith to try to resolve the Claim(s) of the NOD. This settlement period shall initially be thirty (30) days from the postmark date of the NOD, and may be extended by mutual agreement. If you and Ossa are unable to resolve the Claim(s) before the end of the settlement period, then you or Ossa may initiate arbitration proceedings by filing the required form for initiating arbitration proceedings (“FIAP”), which is available on the AAA website, with the AAA in accordance with its rules and procedures. In addition, the party initiating the arbitration must mail a copy of the completed FIAP to the opposing party.
Any settlement offer or counteroffer made by you or Ossa shall not be disclosed to the arbitrator.
If initiated by you, the arbitration hearing shall be held in the city and county of New York, New York, and if initiated by Ossa, the arbitration hearing shall be held in the county in the U.S. in which you reside and if there is no such county then in the County of New York, New York, and in either case alternatively at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or Ossa may elect to have the arbitration proceedings, including the hearing, conducted by telephone or based solely on written submissions, which election shall be binding on you and Ossa subject to the arbitrator’s discretion to require an in-person hearing, if the circumstances warrant. In cases where an in-person hearing is held, you and/or Ossa may attend by telephone, unless the arbitrator requires otherwise.
The arbitrator will decide the substance of all Claims in accordance with applicable law, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different users, and shall be bound by rulings in prior arbitrations involving the same user to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
iii.Costs of Arbitration
Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules, unless otherwise stated in Section 20.B or as agreed to by the parties.
With the exception of any of the provisions in Section 20.B.i , if an arbitrator or court decides that any part of this Section 20.B is invalid or unenforceable, the other parts of Section 20.B shall still apply.
v.Future Amendments to Section 20.B
Notwithstanding any provision in the User Agreement to the contrary, you and we agree that if we make any amendment to Section 20.B (other than an amendment to any notice address) in the future, that amendment shall not apply to any Claim that was filed in a legal proceeding against Ossa prior to the effective date of the amendment. The amendment shall apply to all other Claims governed by the Section 20.B that have arisen or may arise between you and Ossa. We will provide you with notice amendments to this Section 20.B. If you do not agree to these amended terms, you may close your Account and cease use of our Services, and you will not be bound by the amended terms.
C.Judicial Forum for Legal Disputes and Injunctive Relief
Unless you and we agree otherwise, in the event that Section 20.B above is found not to apply to you or to a particular Claim, either as a result of a mutual agreement of the parties or a decision by the arbitrator or a court order, you agree that any such Claim must be resolved exclusively by a state or federal court located in New York County, New York. You and Ossa agree to submit to the personal jurisdiction of the courts located within New York County, New York for the purpose of litigating all such Claims, and waive any objection to the jurisdiction of, and to venue in, such court.
You and we also agree that the provisions of Section 20.B will not apply to any legal action taken by a party to seek an injunction or other equitable relief, whether temporary, preliminary, or permanent in nature, in connection with any Claim that is subject to arbitration, in the aforementioned courts located within New York County, New York.
You agree that regardless of any statute or law to the contrary, any Claim must be filed and a proceeding initiated within one (1) year after such Claim arose or be forever barred.
Except as otherwise provided in the Terms of Service, if a court or arbitrator determines that the scope and/or operation of any provision of the Terms of Service is too broad to be enforced as written, we and you intend and agree that the court or arbitrator should reform such provision to such narrower scope and/or operation as it determines to be enforceable. If, however, such provision is held to be illegal, invalid, or unenforceable under present or future law, and not subject to reformation, then (i) such provision shall be fully severable, (ii) the Terms of Service shall be construed and enforced as if such provision was never a part of this agreement, and (iii) the remaining provisions of the Terms of Service shall remain in full force and effect and shall not be affected by the illegal, invalid, or unenforceable provision.
In our sole discretion, we may assign or transfer the Terms of Service and this User Agreement, and in such event, we will provide you with notice as permitted herein. You may not assign or transfer the Terms of Service or this User Agreement, and you may not delegate your duties hereunder to another, without first obtaining our prior written consent.
Headings of Sections are for reference purposes only and do not limit the scope or extent of such Section.
In the event that an issue arises with respect to your use of Services, we may consider your performance history and prior use of Services and the particular circumstances in applying our policies. We may choose to be more lenient with policy enforcement in an effort to do the right thing for users. Notwithstanding the foregoing, our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of the Terms of Service or this User Agreement.
We may amend or modify the Terms of Service or this User Agreement or any part thereof at any time by providing you with notice of the amended terms, policies, Services or conditions. Our right to amend the Terms of Service includes the right to modify, add to, or remove terms in the Terms of Service or the User Agreement. We also may impose limits on certain features and Services or restrict or permit your access to certain parts or all of the Services or expand or contract our Services without notice or liability. If any alterations constitute a material change to the Terms of Service, we will provide notice of any material changes and we will endeavor to provide you with 30 days advance notice of any material changes. What constitutes a “material change” will be determined in our sole discretion, in good faith, and using common sense, standard industry practices and reasonable judgment.
Your continued access or use of our Services constitutes your acceptance of the amended terms, and changes take effect when we provide you with notice of them or as of the effective date provided, if later, as the case may be. We may also ask you to acknowledge your acceptance of the amended Terms of Service or User Agreement through an electronic communication response. You have no right or expectation to amend or modify the Terms of Service or this User Agreement except through a mutual agreement reached by you and an Ossa representative who intends to amend the Terms of Service or this User Agreement and is duly authorized to agree to such an amendment. You have a responsibility to check the Terms of Service and the User Agreement periodically for any changes.
If you create or use an Account (including a payment method) or Profile on behalf of a business entity, you represent that you are authorized to act on behalf of such business entity and bind the business to this User Agreement. Such Account (including payment method) or Profile is owned and controlled by the business entity.
We shall not be liable for any failure to perform our obligations hereunder where such failure results from any cause beyond our reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation.
No agency, partnership, joint venture, franchisor-franchisee or employment relationship is created as a result of the User Agreement and neither party has any authority of any kind to bind the other in any respect, except as expressly set forth in this User Agreement. The Terms of Service noticed through our Services set forth the entire understanding and agreement between you and Ossa, and supersede all prior understandings and agreements of the parties.
The following Sections survive any termination of this User Agreement: Sections 6 (Commissions), 7 (Profiles), 8 (Content), 12 (Notice), 13 (Confidentiality), 14 (Privacy of Others and Marketing), 15 (No Ad Placement Outside of Ossa), 16 (Non-Solicitation and Non-Competition), 17 (Disclaimer of Warranties and Limitation of Liability); 18 (Release), 19 (Indemnity), 20 (Legal Disputes), and 21 (General).
If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
We reserve the right to refuse to provide the Services to anyone and to modify or terminate all or any part of our Services to anyone and for any reason at any time in our sole and absolute discretion, without advance notice, and may, but have no obligation to, remove content that we determine in our sole discretion to be unlawful, offensive, threatening, libelous, defamatory, obscene or otherwise objectionable or violates any party’s Intellectual Property Rights or the Terms of Service.