TERMS OF SERVICE
Last Updated: September 7, 2022
The following terms and conditions (the “Agreement”) govern all use of TributePod's website (located at www.tributePod.com.au – “Website”), products and services (collectively, the “Service”). The Service is owned and operated by TributePod. (“TributePod”, “us”, “we”, or “our”). The Service is offered subject to your acceptance without modification of all the terms and conditions contained herein. BY USING OR ACCESSING ANY PART OF THE SERVICE, YOU AGREE TO ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN; IF YOU NOT AGREE, DO NOT USE THE SERVICE.
TributePod reserves the right, at its sole discretion, to modify or replace any of the terms or conditions of this Agreement at any time. If we have your email address, we will notify you via email. In addition, we will update the “Last Updated” date above.
To the extent you have an executed agreement with TributePod with respect to the subject matter here, such separate agreement will control.
1. ARBITRATION AND CLASS ACTION WAIVER
WE HAVE CERTAIN REQUIREMENTS THAT YOU AGREE TO ARBITRATE DISPUTES YOU MAY HAVE WITH US – AND WAIVE RIGHTS TO BRING CLASS ACTION LAWSUITS. PLEASE SEE SECTION 18 (“DISPUTE RESOLUTION”) BELOW FOR MORE INFORMATION. BY ENTERING THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF ENTERING THIS AGREEMENT.
The Service allows users to create audio-visual content (“TributePod's"). We use internal interviewers (“Interviewers”) and editors and editors (“Editors”) to help put together the TributePod's.
3. User Account; Access
In order to use the Service you are required to enter reliable personal information on order for the service to be distributed accordingly.
You represent and warrant that: (a) all required registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information.
TributePod may change, suspend or discontinue any aspect of the Service at any time. TributePod may also impose limits on certain features and services or restrict your access to parts or all of the Service without notice or liability.
The Service is available only to individuals who are at least 18 years old. You represent and warranty that if you are an individual, you are at least 18 years old. You also certify that you take full responsibility for the selection and use of the Service. This Agreement is void where prohibited by law, and the right to access the Service is revoked in such jurisdictions.
Your shall be responsible for obtaining and maintaining any equipment or ancillary services needed to connect to, access the Service, including, without limitation, modems, hardware, software, and headphones/earphones. You shall be responsible for ensuring that such equipment or ancillary services are compatible with the Service.
4. TributePod's and User Submissions
The purchaser of the TributePod owns the TributePod; provided that, the owner must not use any recording or statements of interview subjects for any commercial purposes without appropriate legal consent.
In connection with the creation of the Tributepod you may be asked by us or Interviewers for information and other content (such as participating in a recorded audio interview) (“User Submissions”). By providing the User Submissions to an Interviewer or the Service, you hereby do and shall grant TributePod (and its relevant providers such as the applicable Interviewer) a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, modify, reproduce, distribute, prepare derivative works of, display, and perform the User Submissions in connection with the applicable TributeoPod. You acknowledge that your User Submissions may be seen and heard by anyone the applicable TributePod is shared with (such as the general public).
You represent and warrant that your User Submissions will (i) be truthful and accurate, (ii) not violate any laws or regulations, (iii) not violate any third party’s intellectual property or other rights, (iv) not disparage, defame, or slander any third party, and (v) not violate any obligations you have to any third party (including confidentiality obligations).
Fees for purchasing a TributePod (or related products and services) will be as set forth by TributePod on the Website (collectively, " Fees"). All amounts are due in Aus Dollars. You acknowledge and agree that TributePod may use a third-party payment processor to help facilitate payments hereunder. To the extent payment is with a credit card – you warrant you are the owner or authorized user of the applicable card – and that we, and our payment processor, may charge such card. All information you submit in connection with your purchase (such as your email, address, etc.) must be true, accurate and up-to-date.
You are responsible for all taxes associated with your purchase (other than taxes based on TributePod's income).
We reserve the right to correct any errors or mistakes in pricing, even if we have already requested or received payment. We also reserve the right to refuse any order placed through the Website.
Except as otherwise set forth by TributePod on the Website – all Fees are non-cancellable and non-refundable.
6. Use of the Service; No Support
You represent and warrant
(i) your use of the Service will comply with all laws and regulations (including with respect to privacy),
(ii) no content (such as User Submissions, surveys, text, data, photos, videos, images, information, and trademarks/logos) you submit to the Service (collectively “User Content”) will infringe or otherwise violate any third party intellectual property rights or any laws or regulations (including, without limitation, as related to obscenity, defamation and privacy),
(iii) if you use the Service on behalf of any third party, you have all necessary authorizations, and (iv) your use of the Service will not conflict with any obligations you have to any third party. Subject to Section 4, TributePod is hereby granted a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, transferable right to use, reproduce and display such User Content as reasonably necessary to provide you with the Service. TributePod reserves the right to remove any User Content from the Service at any time, for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such User Content), or for no reason at all.
TributePod has no obligation to provide any support hereunder.
7. Other Restrictions
You shall not submit any content or information to the Service that is false, misleading or inaccurate.
You shall not use any “deep-link”, “page-scrape”, “robot”, “spider” or other automatic device, program, algorithm or methodology, or any similar or equivalent manual process, to access, acquire, copy or monitor any portion of the Service, or in any way reproduce or circumvent the navigational structure or presentation of the Service, to obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the Service. TributePod reserves the right to bar any such activity.
You shall not attempt to gain unauthorised access to any portion or feature of the Service, or any other systems or networks connected to the Service or to any TributePod server, or to any of the services offered on or through the Service, by hacking, password “mining”, or any other illegitimate means.
You shall not probe, scan or test the vulnerability of the Service or any network connected to the Service, nor breach the security or authentication measures on the Service or any network connected to the Service. You shall not reverse look-up, trace or seek to trace any information on any other user of or visitor to the Service, or any other customer of TributePod, including any TributePod account not owned by you, to its source, or exploit the Service or any service or information made available or offered by or through the Service, in any way where the purpose is to reveal any information, including but not limited to personal identification or information, other than your own information, as provided for by the Service.
You shall not take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Service or Tributepod's systems or networks, or any systems or networks connected to the Service or to TributePod.
You shall not use any device, software or routine to interfere or attempt to interfere with the proper working of the Service or any transaction being conducted on the Service, or with any other person’s use of the Service.
You shall not forge headers or otherwise manipulate identifiers in order to disguise the origin of any message or transmittal you send to TrivutePod on or through the Service. You shall not, in connection with the Service, pretend (e.g. through impersonation) that you are any other person.
You shall not use the Service for any purpose that is unlawful or prohibited by this Agreement, or which infringes the rights of TributePod or others.
If you provide ideas, suggestions, or other feedback to TributePod in connection with the Service (such as suggestions for improvements to the Service) ("Feedback"), you acknowledge that the Feedback is not confidential and you grant TributePod (and our successors and assigns) a perpetual, irrevocable, worldwide, sublicensable, transferrable, royalty-free, fully paid-up right and license to use, reproduce, display, perform, distribute, sell, and otherwise fully exploit all Feedback.
We may provide you areas on the Website to leave reviews or ratings. When posting a review, you must comply with the following criteria: (1) you should have firsthand experience with the person/entity being reviewed; (2) your reviews should not contain offensive profanity, or abusive, racist, offensive, or hate language; (3) your reviews should not contain discriminatory references based on religion, race, gender, national origin, age, marital status, sexual orientation, or disability; (4) your reviews should not contain references to illegal activity; (5) you should not be affiliated with competitors if posting negative reviews; (6) you should not make any conclusions as to the legality of conduct; (7) you may not post any false or misleading statements; and (8) you may not organize a campaign encouraging others to post reviews, whether positive or negative.
We may accept, reject, or remove reviews in our sole discretion. We have absolutely no obligation to screen reviews or to delete reviews, even if anyone considers reviews objectionable or inaccurate. Reviews are not endorsed by us, and do not necessarily represent our opinions or the views of any of our affiliates or partners. We do not assume liability for any review or for any claims, liabilities, or losses resulting from any review. By posting a review, you hereby grant to us a perpetual, non-exclusive, worldwide, royalty-free, fully-paid, assignable, and sublicensable right and license to reproduce, modify, translate, transmit by any means, display, perform, and/or distribute all content relating to reviews.
10. Third Party Services
The Service may permit you to link to the Third Party Offerings and other third party websites or applications or services, and other websites or applications or services may contain links to the Service. Such third party offerings, websites, and services are not under TributePod’s control, and you acknowledge that TributePod is not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of them. The inclusion of any such link does not imply endorsement by TributePod. You further acknowledge and agree that TributePod shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any content, goods, information, or services available on or through any such offerings, websites, or services.
You shall defend, indemnify, and hold harmless TributePod and each of our employees, contractors, directors, providers, suppliers and representatives from all liabilities, damages, losses, settlements, claims, actions, suits, demands, proceedings, costs and expenses, including attorneys' fees, that arise from or in connection with: (i) your use or misuse of the Service; (ii) if you are a Third Party Provider, any issues arising in connection with your Third Party Offering(s), (iii) if you are a Purchaser, your procurement or use of any Third Party Offering(s), (iv) your User Content, (v) your access to any part of the Service, (vi) your negligence, misconduct, or other fault, (vii) any dispute you may be involved in with another Service user, or (vii) your violation of this Agreement.
12. Warranty Disclaimer
THE SERVICE IS PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. TRIBUTEPOD MAKES NO WARRANTY THAT (I) THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR (II) THE RESULTS OF USING THE SERVICE WILL MEET YOUR REQUIREMENTS.
WITHOUT LIMITING THE FOREGOING, IF YOU ARE A PURCHASER, YOU ACKNOWLEDGE AND AGREE THAT TributePod MAKES NO WARRANTIES WITH RESPECT TO ANY THIRD PARTY OFFERING AND HAS NO OBLIGATION TO REVIEW OR OTHERWISE VET ANY THIRD PARTY OFFERING OR THIRD PARTY PROVIDER. INCLUSION OF ANY THIRD PARTY OFFERING ON THE SERVICE DOES NOT CONSTITUTE ANY SORT OF ENDORSEMENT BY TRIBUTEPOD.
THE FOREGOING DISCLAIMERS SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
13. Limitation of Liability
IN NO EVENT SHALL TRIBUTEPOD, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR PROVIDERS BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL THEORY WITH RESPECT TO THE SERVICE: (I) FOR ANY LOST PROFITS OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, EVEN IF FORESEEABLE, (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), (III) FOR ANY ERRORS OR OMISSIONS IN THE SERVICE, OR (IV) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) $5.00 (U.S.).
WITHOUT LIMITING THE FOREGOING, IF YOU ARE A PURCHASER, YOU ACKNOWLEDGE AND AGREE THAT TRIBUTEPOD IS NOT LIABLE FOR ANY THIRD PARTY OFFERING OR THE ACTS OR OMISSIONS OF ANY THIRD PARTY PROVIDERS. AS A PURCHASER, YOU PROCURE AND USE THIRD PARTY OFFERINGS ENTIRELY AT YOUR OWN RISK.
WITHOUT LIMITING THE FOREGOING, ALL USERS ACKNOWLEDGE AND AGREE THAT THAT TRIBUTEPOD IS NOT LIABLE FOR THE IPFS (INCLUDING, WITHOUT LIMITATION, FOR ANY TECHNICAL ISSUES, ERRORS, DOWNTIME, OR VIRUSES).
IN ADDITION, ALL USERS ACKNOWLEDGE AND AGREE THAT TRIBUTEPOD SHALL NOT BE LIABLE FOR ANY MATTERS BEYOND TRIBUTEPOD’S REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, MECHANICAL, ELECTRONIC, OR COMMUNICATIONS FAILURE OR DEGRADATION.
THE FOREGOING LIMITATIONS SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
14. Term and Termination
TributePod may terminate your access to all or any part of the Service at any time, with or without cause. You can terminate this Agreement by permanently ceasing to use the Service. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, warranty disclaimers, limitations of liability, and outstanding payment obligations.
15. Export and Trade Controls
You agree not to import, export, re-export, or transfer, directly or indirectly, any part of the Service or any information provided on or through the Service except in full compliance with all Australian, foreign and other applicable laws and regulations.
16. Electronic Communications
When you use the Service or send e-mails to TributePod, you are communicating with TributePod electronically. You hereby consent to receive communications from us electronically. You agree that all agreements, notices, disclosures and other communications that TributePod provides to you electronically satisfy any legal requirement that such communications be in writing.
All legal notices to TributePod must be addressed in writing, and sent by registered or certified mail, to: TributePod, 29 Affinity Place, Birtinya, QLD, 4575 (Attn: Legal). If you have general questions regarding this Agreement or the Service, you may also email us at firstname.lastname@example.org
TributePod may provide notices to you via email and to any other address you provide.
18. Dispute Resolution
Let's Try To Work It Out. Ideally, if you have any concerns or complaint against TributePod, we would like to resolve the issue without resorting to formal court or arbitration proceedings. Therefore, before filing a claim against TributePod, you agree to try to resolve the dispute informally by contacting us as set forth in Section 17 above. TributePod will attempt to resolve the dispute informally (and will contact you via email). If a dispute is not resolved within thirty (30) days of submission, you may bring a formal proceeding.
Arbitration. Any disputes that are not settled informally as contemplated above shall be settled by binding arbitration in accordance with the rules and procedures (“Rules”) of the Australian Disputes Centre (“ADC”). The Rules will be ADC's Consumer Arbitration Rules if available. Arbitration shall be conducted by one (1) arbitrator selected in accordance with the Rules. In the event any telephonic or other streamlined procedures are available – they will be used. The written decision of the arbitrator shall be final and binding on the parties and enforceable in any court. The arbitration proceeding shall take place in San Francisco, California using the English language. Notwithstanding the foregoing, either party may bring claims for equitable or injunctive relief before a court (see the “Going to Court” section below) at any time.
Process. A form for initiating arbitration proceedings is available on the ADC's site at www.disputescentre.com.au In addition to filing this form with the Rules, the party initiating the arbitration must mail a copy of the completed form to the opposing party. You may send a copy to TributePod at: TributePod 29 Affinity Place, Birtinya, QLD, 4575 (Attn: Arbitration). In the event we initiate arbitration against you, we will send a copy of the completed form to the email address or physical address we have on file.
Evidence. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents we and you submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the Rules. Subject to the Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
Fees. The parties’ will each bear their own costs and expenses associated with arbitration – and responsibility to pay any ADC filing, administrative and arbitrator fees will be solely as set forth in the ADC Rules.
No Class Actions. You may only resolve disputes with TributePod on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed.
Modifications. Notwithstanding any provision in this Agreement to the contrary, you and we agree that if we make any amendment to the foregoing arbitration terms or conditions (other than an amendment to any notice address or site link) in the future, such amendment shall not apply to any claim that was filed in a legal proceeding against TributePod prior to the effective date of the amendment. In addition, you shall have the reject any such amendment by notifying TributePod in writing within thirty (30) days of the date that you are first notified of the amendment (according to the procedures set forth above in this Section 18). In the event you so reject an amendment, the amendment will not apply to you – but this Section 18 will otherwise remain in fully force and effect (according to the pre-amendment version you had already agreed to).
Going to Court. Subject to the arbitration provision above, you agree that the exclusive jurisdiction and venue for all disputes arising in connection with this Agreement shall be in the state and Federal courts located in Brisbane, QLD. You hereby submit to such jurisdiction and venue.
THE TERMS AND CONDITIONS IN THIS SECTION 18 WILL NOT APPLY TO THE EXTENT PROHIBITED OR OTHERWISE.
19. Electronic Communications, Transactions, and Signature
Visiting the Website, sending us emails, and completing online forms constitute electronic communications. You consent to receive electronic communications, and you agree that all agreements, notices, disclosures, and other communications we provide to you electronically, via email and on the Site, satisfy any legal requirement that such communication be in writing. YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS, AND OTHER RECORDS, AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED BY US OR VIA THE SITE. You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means.
20. Website Content
Provided that you are eligible to use the Website, you are granted a limited license to access and use the Website and to download or print a copy of any portion of the Content to which you have properly gained access solely for your personal, non-commercial use. We reserve all rights not expressly granted to you in and to the Website, the Content and the Marks.
The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by you except with TributePods’s prior written consent. TributePod may transfer, assign or delegate this Agreement and its rights and obligations without consent. This Agreement shall be governed by and construed in accordance with the laws of the state of California, as if made within California between two residents thereof. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind TributePod in any respect whatsoever.