Sirius XM Radio Inc. (“Sirius XM”) offers the Sirius XM Orange Portal, a place for Podcast creators to submit their Podcasts for distribution by Sirius XM via the Orange mobile application, (collectively with the Orange Portal, referred to as “Orange”). You may use Orange to submit your Podcast (i) that is original to, and created by, you, or (ii) to which you have all applicable intellectual property and other rights for distribution on Orange. Please take note that, unlike the Sirius XM satellite radio service, Orange is not licensed for music content and we do not plan to seek those licenses so please ensure that your Podcast does not contain any music or you may be liable for any damages with respect to such music. For purposes of these Portal Terms, “Podcast” means a digital file (including, without limitation audio, video, text, etc.) that is typically available as a series, new installments of which can be received by users or subscribers automatically for distribution and playback, and any related content provided by you to Sirius XM, including biographical and marketing materials.
1. Agreement to Portal Terms. Your use of Orange is subject to these Podcast Creator Terms of Service for the Orange Portal (these "Portal Terms") together with the Orange End User Terms of Service (the “Orange Terms”). Please read these Portal Terms and the Terms carefully. If you do not accept or agree with any part of the Portal Terms, then you may not use Orange. If you are accessing or using Orange on behalf of a company (such as your employer) you represent and warrant that you have the authority to bind that company to these Terms. In that case, “you” and “your” will refer to that company.
Capitalized terms not defined in these Portal Terms have the meaning given to them in the Terms.
3. Changes to Portal Terms or Orange. Sirius XM reserves the right to modify these Portal Terms at any time, in its sole discretion, and without advance notice to you. If you continue to use Orange after we have posted modified Portal Terms, you agree to be bound by such modifications. If you do not agree to the modified Portal Terms you are not permitted to use Orange anymore. Because Orange is evolving over time, we may change or discontinue all or any part of Orange, at any time and without notice, in our sole discretion.
4. ARBITRATION NOTICE: PLEASE READ SECTION 25 BELOW (DISPUTE RESOLUTION) CAREFULLY. IT PROVIDES THAT, UNLESS YOU OPT OUT OF ARBITRATION WITHIN 30 DAYS FOLLOWING THE OPT-OUT PROCEDURE SPECIFIED IN SECTION 25 BELOW, AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN SECTION 25 BELOW, ANY DISPUTE MAY BE RESOLVED BY BINDING ARBITRATION. BY AGREEING TO ARBITRATION, YOU ARE HEREBY WAIVING THE RIGHT TO GO TO COURT, INCLUDING THE RIGHT TO A JURY, AND YOU ARE ALSO WAIVING YOUR RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. IN ARBITRATION, A DISPUTE IS RESOLVED BY AN ARBITRATOR, OR A PANEL OF ARBITRATORS, INSTEAD OF A JUDGE OR JURY. THE PARTIES UNDERSTAND THAT THEY WOULD HAVE HAD A RIGHT OR OPPORTUNITY TO LITIGATE DISPUTES THROUGH A COURT AND TO HAVE A JUDGE OR JURY DECIDE THEIR CASE, BUT THEY CHOOSE (BY THEIR ACCEPTANCE OF THESE PORTAL TERMS OR IN ACCESSING OR USING ORANGE) TO HAVE ANY DISPUTES RESOLVED THROUGH ARBITRATION.
5. Eligibility. You may use Orange only if you are 18 years of age or older, and capable of forming a binding contract with Sirius XM and are not barred from using Orange under applicable law. Orange is currently available only if you are a resident of the United States.
6. Account Registration. In order to use Orange, you must register with Orange by creating a new account (the “Podcast Creator Account”). It is important that you provide Sirius XM with accurate, complete and up-to-date information for your Podcast Creator Account and you agree to update such information, as needed, to keep it accurate, complete and up-to-date. If you do not, we might have to suspend or terminate your Podcast Creator Account. You agree that you will not disclose your Podcast Creator Account password to anyone and you will notify us immediately of any unauthorized use of your Podcast Creator Account. You may associate your Podcast Creator Account with only one name or legal identity. You will not select or use a name that (i) impersonates another company, business, person or other Podcast creator without appropriate authorization, or (ii) misrepresents your affiliation with such company, business, person or other Podcast creator.
7. Delivery of Your Podcasts to Orange. Unless otherwise specified by Sirius XM, you will provide your Podcasts to Orange via a RSS feed. You agree to provide the metadata about the Podcasts as specified in the user interface (including relevant tags identifying content as “Explicit”).
8. License from You.
1. Right to Host and Distribute Your Podcast. You grant to Sirius XM all rights necessary to use your Podcasts, in whole or in part, in connection with Orange, including, without limitation, a worldwide, royalty-free, transferable, sublicensable, non-exclusive right and license to (i) use, reproduce, modify, edit, abridge, make derivative works based upon, distribute copies of, display and perform publicly, transcode, download and store on Sirius XM’s servers or servers controlled by Sirius XM, your Podcasts, as may be required to distribute the Podcasts via Orange either in their entirety or as clips or excerpts or combined with other Podcasts and content, in whole or in part, including via download to a user’s device and as a part of a subscription (whether paid or unpaid) and the right to provide continued access to any Podcast to users who previously downloaded a copy of that Podcast, in order to facilitate that user’s permanent ability to access the Podcast, (ii) analyze, extract and process content and metadata from the Podcasts in order to distribute such Podcasts via Orange, and (iii) use the Podcasts for internal research, development and copyright measures such as content identification.
2. Reservation of Rights. Except for the licenses granted in these Portal Terms, you retain all rights, title and interest to your Podcasts and Sirius XM retains all rights, title and interest in and to Orange, including all associated intellectual property rights, and any other Sirius XM trademarks, systems, technology, files, data or other information. You acknowledge that Orange is protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying Orange.
9. Rights and Terms for Orange Mobile Application. Subject to your compliance with these Portal Terms, Sirius XM grants you a limited non-exclusive, non-transferable, non-sublicensable license to download and install a copy of the Orange mobile application (the “Orange App”) on a mobile device or computer that you own or control and to run such copy of the Orange App solely for your own personal non-commercial purposes. You may not copy the Orange App, except for making a reasonable number of copies for backup or archival purposes. Except as expressly permitted in these Portal Terms, you may not (i) copy, modify or create derivative works based on the Orange App, (ii) distribute, transfer, sublicense, lease, lend or rent the Orange App to any third party, (iii) reverse engineer, decompile or disassemble the Orange App, or (iv) make the functionality of the Orange App available to multiple users through any means.
10. Marketing and Promoting Your Podcasts. You grant to Sirius XM a worldwide, royalty-free, transferable, sublicensable, non-exclusive right and license to use, reproduce and distribute any name(s), logo(s), trademark(s), design(s) and trade name(s) associated with your Podcasts, the Podcast titles, Podcast description and Podcast artwork that you provide to Sirius XM (i) in connection with the marketing, promotion and advertising of the Podcasts on Orange, and (ii) for use in presentations, financial reports, press releases and customer lists, websites and blogs for Sirius XM and its affiliates.
11. Sirius XM Advertising. You agree that Sirius XM may present audio, video and/or display advertisements in connection with your Podcasts on Orange.
12. No Compensation or Revenue Share. You understand and agree that you will not be entitled to any revenue or any other any monetary compensation in connection with Sirius XM’s distribution of your Podcasts in accordance with these Portal Terms or in connection with your use of Orange.
13. Podcast Creator-Sold Ads Requirements. You have the right to include audio-only, pre-roll and mid-roll advertisements in your Podcasts (the “Podcast Creator-Sold Ads”) subject to your compliance with Sirius XM’s ad policies as in effect from time to time (collectively, the “Orange Ad Policies”). You have the right to retain all monies and revenues associated with such Podcast Creator-Sold Ads. Sirius XM has the right to block any Podcast or advertisements that contain any Podcast Creator-Sold Ads and/or any other advertisements that do not comply with Orange Ad Policies. You understand and agree that if Sirius XM only uses or plays an edited segment or clip of your full Podcast via Orange, any Podcast Creator-Sold Ads associated with the full Podcast may not be played or heard on Orange. In addition, Sirius XM may remove and may require you to remove any Podcast Creator-Sold Ads from playback or display that violates Orange Ad Policies as determined by Sirius XM in its reasonable discretion.
14. General Prohibitions. You agree not to use Orange or your Podcasts to engage in illegal, fraudulent or other wrongful conduct, including but not limited to any of the following: (i) use, distribute, display, mirror or frame any part of Orange, Sirius XM or Orange’s name, any Sirius XM trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Sirius XM’s express written consent; (ii) access, tamper with, or use non-public areas of Orange or Sirius XM; (iii) breach any security or authentication measures; (iv) circumvent any technological measure implemented by Sirius XM or any of Sirius XM’s providers or any other third party (including another user) to protect Orange; (v) attempt to access or search Orange or download content (including other Podcasts) from Orange through the use of any means not explicitly authorized by Sirius XM; or other form of solicitation; (vi) attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide Orange; (vii) send a virus, overload, flood, or mail-bomb Orange; or (viii) encourage or enable any other individual to do any of the foregoing.
15. Podcast Takedowns. While Sirius XM is not obligated to monitor access to, or use of, the Podcasts on Orange or to review or edit the Podcasts, Sirius XM has the right to do so for the purpose of operating Orange, to ensure compliance with these Portal Terms, and to comply with applicable law. Sirius XM may remove, screen, edit or disable access to any Podcasts, at any time and without notice, in its sole discretion and for any reason, including, but not limited to, if Sirius XM, considers any Podcast to be objectionable or in violation of any laws or these Portal Terms or otherwise harmful to Orange. Sirius XM has the right to investigate violations of these Portal Terms or conduct that affects Orange. Sirius XM may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
16. Termination. If you fail to comply with any term of these Portal Terms, Sirius XM may terminate your rights hereunder without notice. In case of such termination, Sirius XM may immediately revoke your access to Orange without notice to you and without the refund of any fees. You may also terminate your Podcast Creator Account at any time, simply by ceasing to use Orange. Sirius XM is not responsible or liable for the removal or deletion (or failure to remove or delete) any of your Podcasts. Upon any termination, discontinuation or cancellation of Orange or of your Podcast Creator Account, Sections 8 (License from You), 14 (General Prohibitions), 16 (Termination), 19 (Warranty Disclaimer), 20 (Limitation on Liability), 21 (Indemnity), 24 (Governing Law), 25 (Dispute Resolution), and 26 (General) will survive.
17. Your Representations and Warranties. You represent and warrant that (i) you own or otherwise control all rights to your Podcasts, (ii) you have all the rights necessary and are authorized to grant all of the rights to the Podcasts under these Portal Terms, (iii) the Podcasts do not contain any music; and (iv) the use or other exploitation of your Podcasts by Sirius XM and/or by users of Orange as contemplated by these Portal Terms and Orange will not infringe or violate the rights of any third party, including, without limitation, any privacy rights, publicity rights, copyrights, contract rights, or any other intellectual property or proprietary rights.
18. Copyright Policy. It is Sirius XM's policy to respond to notices of alleged copyright infringement that comply with applicable intellectual property law and to terminate the accounts of repeat infringers. Details of Sirius XM's copyright policy can be found at http://www.siriusxm.com/pdf/siriusxm_customeragreement_eng.pdf
19. Warranty Disclaimer. YOU AGREE THAT YOUR USE OF ORANGE WILL BE AT YOUR SOLE RISK AND THAT ORANGE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, SIRIUS XM, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ANY WARRANTIES, EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. Sirius XM makes no warranty that Orange will meet your requirements or be available without interruption, or on a secure, error-free basis. Sirius XM makes no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any Orange content OR ANY PODCASTS.
20. Limitation of Liability. N NO EVENT WILL SIRIUS XM, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE PORTAL TERMS, OR FROM YOUR ACCESS TO AND USE OF OR INABILITY TO ACCESS OR USE ORANGE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SIRIUS XM IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL SIRIUS XM’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE PORTAL TERMS OR FROM THE USE OR INABILITY TO USE ORANGE OR ANY PODCASTS, EXCEED $100. THE FOREGOING LIMITATIONS OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
21. Indemnity. You agree to defend, indemnify and hold Sirius XM and its officers, directors, employees and agents harmless, from and against any and all claims, damages, and expenses (including, but not limited to, attorneys’ fees) arising from: (i) your use of and access to Orange; (ii) your violation of any term of these Portal Terms; or (iii) your Podcasts.
22. Feedback. You can submit feedback, comments and suggestions for improvement to Orange (“Feedback”) by emailing us at firstname.lastname@example.org. You grant to Sirius XM a worldwide, perpetual, irrevocable, fully-paid, royalty-free, transferable, sublicensable and non-exclusive license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
23. Links to Third Party Websites or Resources. Orange may contain links to third-party websites or resources. Sirius XM provides these links only as a convenience and is not responsible for the content, products or services on or available from those websites or resources or links displayed on such websites. You acknowledge sole responsibility for, and assume all risk arising from, your use of any third-party websites or resources.
24. Governing Law. You agree that: (i) Orange will be deemed solely based in New York; and (ii) Orange will be deemed a passive website that does not give rise to personal jurisdiction over Sirius XM, either specific or general, in jurisdictions other than New York. These Portal Terms and any action related thereto will be governed by the laws of the State of New York without regard to its conflict of laws provisions.
25. Dispute Resolution. In order to expedite and control the cost of disputes, you agree that any legal or equitable claim relating to Orange, your Podcast or these Portal Terms (a “Claim”), will be resolved as follows:
1. Informal Claim Resolution. To initiate an informal resolution to a Claim, you must send a notice by first class United States mail to Sirius XM Radio Inc., 1221 Avenue of the Americas, 36th Floor, New York, NY 10020, Attention: Listener Care (a “Notice”). Neither of us may start a formal proceeding (except for Claims described in subsection 3 below) for at least sixty (60) days after one of us notifies the other of a Claim in writing. If we initiate a Claim, we will send our notice using the contact information you provided when you created your Podcast Creator Account or to the billing address on file with us.
2. Formal Resolution. If we cannot resolve a Claim informally, including any Claim between us, and any Claim by either of us against any agent, employee, successor, or assign of the other, including, to the full extent permitted by applicable law, third parties who are not party to these Portal Terms, whether related to these Portal Terms or otherwise, including past, present, and future Claims and disputes, and including any dispute as to the validity or applicability of this arbitration clause, then these Claims shall be resolved, upon election by either party, exclusively and finally by binding arbitration.
The party initiating arbitration must follow the rules and procedures of the American Arbitration Association (“AAA”) in effect at the time the Claim is filed, and the parties agree that the arbitration shall be administered by the AAA. You may obtain copies of the current rules, forms and instructions for initiating an arbitration by contacting:
American Arbitration Association
1633 Broadway, 10th Floor
New York, New York 10019
Web site: www.adr.org
This arbitration agreement is made pursuant to a transaction involving interstate commerce and shall be governed by the Federal Arbitration Act (“FAA”), and not by any state law concerning arbitration.
3. Exceptions. Notwithstanding the foregoing, you and Sirius XM agree that: (i) each party retains the right to bring an individual action in small claims court pursuant to Section 25.4 below; and (ii) any dispute involving a violation of the Communications Act of 1934, 47 U.S.C. §605, the Electronic Communications Privacy Act, 18 U.S.C. §§2510-2521, or a violation of our intellectual property rights may be decided only by a court of competent jurisdiction. Without limiting the preceding sentence, you will also have the right to litigate any other Claim if you provide Sirius XM with written notice of your desire to do so by email or regular mail at Sirius XM Radio Inc., 1221 Avenue of the Americas, 36th Floor, New York, NY 10020, Attention: Listener Care within thirty (30) days following the date you first agree to these Portal Terms (such notice, an “Arbitration Opt-out Notice”). If you do not provide Sirius XM with an Arbitration Opt-out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Claim except as expressly set forth in clauses (i) and (ii) above. The exclusive jurisdiction and venue of any dispute set forth in clause (ii) above or, if you timely provide Client with an Arbitration Opt-out Notice, will be the state and federal courts located in New York, New York and each of the parties hereto waives any objection to jurisdiction and venue in such courts. Unless you timely provide Sirius XM with an Arbitration Opt-out Notice, you acknowledge and agree that you and Sirius XM are each waiving the right to a trial by jury.
4. Small Claims. Instead of proceeding to arbitration, either you or we have the option to pursue a Claim in small claims court (or the equivalent) so long as 1) the Claim remains in that court, and 2) is made solely on our behalf (if brought by us) or on your behalf. However, if that Claim is transferred or appealed to a different court, we reserve our right to elect arbitration.
5. Cost Sharing. Whoever files the arbitration pays the initial filing fee. If we file, we pay; if you file, you pay, unless you get a fee waiver under the applicable arbitration rules. If you have paid the initial filing fee and you prevail, we will reimburse you for that fee. If there is a hearing, we will pay any fees of the arbitrator and arbitration firm for the first day of that hearing. All other fees will be allocated as provided by the rules of the arbitration firm and applicable law. In no event will you be required to reimburse us for any arbitration filing, administrative, or hearing fees in an amount greater than what your court costs would have been if the Claim had been resolved in a state court with jurisdiction. However, we will advance or reimburse your fee if the arbitration firm or arbitrator determines there is good reason requiring us to do so, or if you ask us and we determine there is good reason for doing so. Each party will bear the expense of that party’s attorneys, experts, and witnesses, and other expenses, regardless of which party prevails, but a party may recover any or all expenses from another party if the arbitrator, applying applicable law, so determines.
6. Class Actions and Severability. If either party elects to resolve a claim by arbitration, that Claim shall be arbitrated on an individual basis. There shall be no right or authority for any claims to be arbitrated on a class action basis or on bases involving Claims brought in a purported representative capacity on behalf of the general public, other subscribers, or other persons similarly situated. No Claim submitted to arbitration is heard by a jury or may be brought as a private attorney general. Unless you timely provide Sirius XM with an Arbitration Opt-out Notice, you acknowledge and agree that you do not have the right to act as a class representative or participate as a member of a class of claimants with respect to any Claim submitted to arbitration (“Class Action Waiver”). The parties to these Portal Terms acknowledge that the Class Action Waiver is material and essential to the arbitration of any disputes between the parties and is non-severable from these Portal Terms to arbitrate Claims. 'Claim' does not include any challenge to the validity and effect of the Class Action Waiver, which must be decided by a court. The parties acknowledge and agree that under no circumstances will a class action be arbitrated, unless you timely provide Sirius XM with an Arbitration Opt-out Notice. If any portion of this arbitration agreement or the Class Action Waiver is limited, voided or cannot be enforced, then the parties' agreement to arbitrate (except for this sentence) shall be null and void with respect to such proceeding, subject to the right to appeal the limitation or invalidation of the Class Action Waiver, that portion will be severed, and the rest of the arbitration agreement will continue to apply. If this entire agreement to arbitrate shall be null and void, then the parties agree that any actions shall be brought in the State or Federal courts of New York, New York.
7. Binding Effect. In the arbitration proceeding, the arbitrator must follow applicable law, and any award may be challenged, as set forth in the FAA. Any court with jurisdiction may enter judgment upon the arbitrator’s award. The arbitrator's decision is final and binding on all parties and may be enforced in any federal or state court with jurisdiction.
26. General. Any notices or other communications provided by Sirius XM under these Portal Terms, including those regarding modifications to these Portal Terms, will be given: (i) via email; or (ii) by posting to Orange. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted. These Portal Terms, and any other legal notices published by Sirius XM on Orange, will constitute the entire agreement between you and Sirius XM concerning Orange, and these Portal Terms supersede and replace any and all prior oral or written understandings between Sirius XM and you regarding Orange and your Podcasts. These Portal Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without Sirius XM’s prior written consent, but may be assigned by Sirius XM, in whole or in part, without your consent, to any third party. If any provision of these Portal Terms is deemed invalid by a court of competent jurisdiction or arbitrator, as applicable, the invalidity of such provision will not affect the validity of the remaining provisions of these Portal Terms, which will remain in full force and effect. No waiver of any term of this these Portal Terms will be deemed a further or continuing waiver of such term or any other term, and Sirius XM's failure to assert any right or provision under these Portal Terms will not constitute a waiver of such right or provision.
27. Contact Information. If you have any questions about these Portal Terms or Orange, please contact Sirius XM at email@example.com or contact Patrick Donnelly, EVP and General Counsel, Patrick.Donnelly@siriusxm.com, (212) 584-5180, 1221 Avenue of the Americas, NY NY 10020.