Appcast™ General Terms & Conditions
Effective October 24, 2023
(Last Updated: February 14, 2024)
These Appcast General Terms & Conditions of Service (the “Terms & Conditions”), along with the Insertion Order signed by you and any exhibits attached herein (to the extent applicable), govern use of the services Appcast provides to you or any Customer and your use of the Appcast Platforms (defined below) (collectively “the Services) and collectively form the agreement (the “Agreement”) between (1) you and the company or organization that employes you (referred to herein as “you”, “your”, and “Customer”) and (2) Appcast, Inc. and its affiliates, subsidiaries, directors, officers, employees, agents, and representatives (referred to herein as “Appcast,” “we,” “us” and “our”). Capitalized terms used but not defined in these Terms & Conditions shall have the meanings ascribed to them in any applicable Insertion Order.
Please read these Terms & Conditions carefully before you use the Appcast Platforms or Services. By accessing or using the Appcast Platforms or the Services, you accept and agree to be bound and abide by these Terms, our Privacy Policy incorporated herein by reference, and all applicable federal, state, and local laws and regulations. These Terms & Conditions constitute a binding agreement between you and Appcast. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS & CONDITIONS, YOU ARE NOT AUTHORIZED TO AND ARE PROHIBITED FROM ACCESSING THE APPCAST PLATFORMS OR THE SERVICES. We may revise and update these Terms & Conditions at any time by posting revisions to the Site and your continued use of the Appcast Platforms or Services indicates your agreement to the revised Terms & Conditions. All changes are effective immediately when we post them to the Site (as indicated in the “Last Updated” date) and apply to all access to and use of the Appcast Platforms or Services thereafter. Accordingly, we urge you to regularly review these Terms & Conditions as they are binding on you. We may update the content on the Appcast Platforms from time to time, but its content is not necessarily complete or up-to-date. Any of the material on the Appcast Platforms may be out of date at any given time, and we are under no obligation to update such material. The Appcast Platforms are offered and available to users who are eighteen (18) years of age or older. By using the Appcast Platforms or Services, you represent and warrant that you are of legal age to form a binding contract with Appcast and meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not access or use the Appcast Platforms or the Services.
If Customer is purchasing media or related Services through Appcast, then Exhibit A of these Terms & Conditions shall apply. If Customer is purchasing branding or creative Services through Appcast, then Exhibit B of these Terms & Conditions shall apply.
1. DEFINITIONS
1.1 “Aggregate Data” means any information, reports, commentaries, market testing outputs, consumer testing outputs, data analyses, test results, consumer, insights or other data accessed, compiled, collected, stored or used by Appcast in connection with the Services, or the Appcast Platforms which is aggregated and does not include personally identifiable information. The source of this Aggregate Data is not identifiable.
1.2 “Appcast Platforms” means collectively and individually, https://www.appcast.io/ and any of its subdomains (the “Site”) and any websites, platforms, exchanges, successor platforms and exchanges, software, portals, applications, and Application Programming Interfaces (“API”s), programs, Recruitment Process Outsourcing (“RPO”) related platforms, components, functions, screen designs, reporting data, and report formats owned or operated by Appcast, and all Updates, Upgrades, and other derivative works, upgrades, releases, fixes, patches, etc. related to the software that Appcast develops, deploys, or makes available to Customer during the term of this Agreement, as they may be modified, relocated and/or redirected from time to time., to receive, or review data and results of the Services.
1.3 “Appcast Received Fees” means the amount of fees received by Appcast for the Services under the Agreement.
1.4 “Authorized User” means any employee or contractor of Customer, whom Customer has authorized to use the Appcast Platforms and who is (i) legally bound in writing or by the nature of their relationship with Customer (a) to protect the Confidential Information (as defined below) and property of Appcast and (b) to comply with the Agreement. Customer is and remains responsible for the acts and omissions of its Authorized Users as they relate to the Services.
1.5 “Customer Data” means any data, information, material (including but not limited to any advertising content, job postings, trademarks, or logos) submitted by Customer to Appcast for use in connection with the Services.
1.6. “Discount” means a reduced fee from a Managed Service Publisher provided by such Managed Service Publisher directly to the Customer. A Discount does not include industry standard rate commissions that Appcast receives from a Managed Service Publisher. In no event will Appcast receive commissions that exceed the industry standards (15%).
1.7 “Documentation” means the explanatory and informational materials concerning the Services, in printed or electronic format, and which Appcast has released for general distribution to its customers.
1.8 “Insertion Order” means a document executed by Appcast and Customer, and referencing and incorporating the terms of the Agreement, which set forth the specific appurtenant details, including but not limited to, campaign details, budget, pricing, and fees, of the Services to be provided by Appcast to Customer.
1.9 “Managed Service” means Appcast’s management of Customer’s Recruitment Media in which Appcast will determine the amount of Recruitment Media to purchase from an applicable Managed Service Publisher and will handle the contracting, communication with, and implementation of those Managed Service Publisher, as more fully set forth in the applicable Insertion Order. The Managed Service is a part of the collective Services.
1.10 “Output” means the Customer-specific results relating to applicants generated through Customer’s use of the Appcast Platforms.. For the avoidance of doubt, Output excludes Brand and Creative Services
1.11 “Services” means the service(s) provided to Customer by Appcast under the Agreement. “ Services” excludes any software provided by a third party.
1.12 “Third Party Data” means any data, information or material submitted to Appcast by any third party.
2. SERVICES
2.1 Access to and Use of the Service. Subject to these Terms & Conditions, and provided Customer is not in default hereunder, Appcast hereby grants to Customer the non-exclusive, non-transferable (except as provided in Section 11.3) right to use and access the applicable Services or the Appcast Platforms, as set forth in the applicable Insertion Order(s), in accordance with the Documentation and the Agreement, solely for the internal business purposes of Customer and not for transfer, distribution, or disclosure to third parties or use for the commercial benefit of any third party.
2.2 Authorized Users. Customer shall issue each Authorized User a unique user identification code (“User ID”) to enable such Authorized User to access and use the Appcast Platforms as permitted hereunder. Customer shall notify Appcast in the event any Authorized User ceases their employment or contractual engagement with Customer. Customer must ensure that no Customer user, except for Authorized Users, have access to and use the Appcast Platforms and that User IDs are not shared or rotated among Authorized Users or issued on a concurrent-usage basis. If the Customer is notified or becomes aware that an unauthorized third party has gained access to or used the Appcast Platforms, Customer shall promptly notify Appcast in writing of such unauthorized access.
2.3 Restrictions. Customer shall not (a) use Appcast Services in any manner which is not expressly authorized by the Agreement or which violates any applicable law or regulation, including domestic and international data privacy regulations and employment laws; (b) copy or reproduce any of the Appcast Platforms, in whole or in part; (c) modify, translate or create derivative works of any of the Appcast Platforms; (d) reverse engineer, decompile, disassemble or otherwise reduce any of the Services to source code form; (e) distribute, sublicense, assign (except for any Brand and Creative Services and as explicitly set forth in Section 11.3), share, timeshare, sell, rent, lease, grant a security interest in, use for service bureau purposes or otherwise transfer the Services or Customer’s right to access and use the Services or the Appcast Platforms; (f) remove or modify any copyright, trademark or other proprietary property of Appcast or its licensors on the Output contained within the Services or Appcast Platforms; or (g) use the Services to market or sell a service competitive to Appcast’s services. ALL RIGHTS NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED TO APPCAST AND ITS LICENSORS.
3. OWNERSHIP; INTELLECTUAL PROPERTY RIGHTS
3.1 Ownership of Intellectual Property. Customer acknowledges and agrees that these Terms & Conditions convey a limited right to use the applicable Services set forth in the Agreement, except for the Brand and Creative Services, and do not convey title or ownership of the Services to Customer. Additional ownership rights may be set forth in Exhibit B (to the extent applicable). The Services, the Appcast Platforms and related source code, web beacons, pixels, and any and all materials relating thereto, including all associated intellectual property rights, shall remain at all times the sole, exclusive property of Appcast. Customer agrees and acknowledges that the Services may contain the valuable trade secrets and proprietary information of Appcast and its licensors. Subject to Customer’s compliance with these Terms & Conditions, Appcast acknowledges and agrees that Customer has the right to create derivate works based on the Output from the Appcast Platforms for Customer’s internal purposes, and Customer has all right, title, and interest in and to such derivative works.
3.2 Suggestions. Customer grants to Appcast a royalty-free, worldwide, transferrable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Services or Appcast Platforms any suggestions, enhancements requests, recommendations, or other feedback provide by Customer or any Authorized User relating to the Services or any other Appcast product or services.
3.3 Aggregate Data. As between Customer and Appcast, Appcast owns all rights, title, and interest in and to Aggregate Data. Accordingly, Appcast may, during the Term and thereafter, use, display, transmit, modify and prepare derivative works of Aggregate Data in any media for any lawful purpose, including maintaining and improving the Service.
3.4 Security. Customer shall take commercially reasonable steps to ensure that no unauthorized persons have access to the Services or Appcast Platforms, and to ensure that no Authorized Users take any action which would be in violation of the Agreement. Such steps shall include, but shall not be limited to, imposing password restrictions on use of the Services, securing the Customer’s system, and administering and monitoring use of the Services.
3.5 Reporting. Customer shall promptly report to Appcast any actual or suspected violation of Sections 2 and/or 3 hereof and shall take such further steps as may reasonably be requested by Appcast to prevent or remedy any such violation.
3.6 Relief. Because unauthorized use of Appcast’s Services or any Output, is likely to substantially diminish the value of such Services, irreparably harm Appcast, and may not be susceptible to cure by the payment of monetary damages, if Customer breaches the provisions of Sections 2 or 3 of these Terms & Conditions, Appcast shall be entitled to seek injunctive and/or other equitable relief, in addition to other remedies afforded by law, to prevent or restrain a breach of Sections 2 or 3 of these Terms & Conditions.
4. FEES, PAYMENT, AND TAXES
4.1 Payment. Payment terms between the parties shall be as set forth in the Insertion Order. Additionally, Appcast will have the right but not the obligation to make any purchases with third parties (including any Managed Service Publishers) on behalf of Customer hereunder in accordance with the concept of sequential liability, so that Appcast shall not be responsible for such purchases unless and until Customer has paid Appcast in full for such purchases. In no event shall Appcast be obligated to remit payments to any third party on behalf of Customer if Appcast has not yet received full and satisfactory payment for all prior payments owed to third parties from Customer. Until payment is received by Appcast, Customer shall remain solely responsible for such purchases. Appcast has the right to confirm with third parties that they expressly agree to payment in accordance with the foregoing terms.
4.2 Collections. Customer shall pay all of Appcast’s costs and expenses (including reasonable attorneys’ and auditors’ fees) if legal action is required to collect outstanding balances of amounts or to enforce any of Appcast’s other rights hereunder or at law. Appcast may charge a late fee on all past due amounts at the rate of 1.5% per month or, if lower, the maximum rate permitted by applicable law. To the extent that Customer disputes any invoice, Customer must provide Appcast notice of such dispute in writing within ten (10) business days of the invoice date, or Customer shall waive any claim with respect to such invoice.
4.3 Payment Terms; Taxes. All amounts due hereunder are payable in U.S. Dollars. Fees are exclusive of any applicable taxes, including without limitation, sales, use, value-added, and withholding taxes, and Customer shall pay all such taxes when due (other than taxes on Appcast’s net income). Sales taxes on Customer’s Recruitment Media Budget may apply and will be clearly shown on Customer’s applicable invoices. Such sales taxes are assessed exclusive of the Recruitment Media Budget amount.
5. DATA
5.1 Customer Data Warranty. Customer represents and warrants that (a) it has the authority and right to transmit or otherwise provide Appcast with access to the Customer Data and other data it provides hereunder and that it has procured the consents and provided the disclosures and/or necessary opt out rights to transmit data and to allow the use thereof as contemplated hereunder; (b) it has the authority and right and to grant the licenses and rights under this Agreement; (c) Customer Data will not infringe the intellectual property rights or other proprietary rights of any third party or violate any law, statute, ordinance or regulation, including without limitation those governing consumer protection, unfair competition, anti-discrimination, and false advertising; and (d) Customer Data will not be libelous, threatening, defamatory, harassing, unlawful, or obscene, or contain any viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data, or personal information. Customer covenants that it will only supply Appcast with data that Customer has the right to supply in accordance with this Agreement.
5.2 License to Appcast. As between Customer and Appcast, Customer owns all rights, title and interest in and to Customer Data. Customer grants Appcast (including its media vendors, affiliates, and other agents and contractors) a non-exclusive, worldwide, royalty-free right to use, copy, display, transmit, share, disclose, modify and prepare derivative works of the Customer Data in any media for any purpose (i) as necessary to optimize the provision the Services to Customer during the Term;(ii) in connection with its internal operations and functions; and (iii) create Aggregate Data from the Customer Data.
5.3 Use of Third Party Data at Customer’s Risk. Appcast shall have no responsibility for the accuracy, quality, integrity, legality, reliability, or appropriateness of Third Party Data, and Appcast shall not be responsible or liable for the deletion, correction, destruction, damage, or loss of any Third Party Data. Customer acknowledges that use of any Third Party Data generated, obtained, or acquired through the use of the Services is at Customer’s sole risk and discretion. Appcast is not liable or responsible for any results generated using Third Party Data.
5.4 Data Processing. To the extent the Customer Data includes personal data that Appcast processes data on Customer’s behalf that is from or about individuals in regions where data privacy requirements are prescribed by applicable law, each party hereby agrees to abide and be bound by the terms and conditions of the Appcast Data Processing Addendum (the “DPA”) as published at https://www.appcast.io/data-processing-addendum/ (or a successor URL) and updated by Appcast from time to time. As applicable to the parties based on the data being processed hereunder, the DPA shall be incorporated herein by this reference.
6. LIMITED WARRANTY; DISCLAIMER OF WARRANTY
6.1 Customer Warranties to Appcast. Customer represents and warrants that: (i) it has the right to enter into this Agreement with Appcast; (ii) it is not a party to any agreement or under any condition which would prevent it from fulfilling its obligations under this Agreement; (iii) it shall use commercially reasonable efforts to perform and promptly complete its obligations under the Agreement (iv) it is responsible for the accuracy, completeness and propriety of information concerning its organization, available job openings, job and salary descriptions, services, industry, or competitors which are provided by Customer to Appcast; (v); Customer and its job hiring practices will comply with all applicable federal, state, and local laws, rules, and regulations; and (vi) Customer will review all materials prepared by Appcast for Customer as part of the Services to confirm that any descriptions and representations, direct or implied, with respect to Customer’s organization, available job openings, job and salary descriptions, services, industry, or competitors are accurate and supportable and that such descriptions and representations are in compliance with all legal and regulatory requirements, directives, and guidelines.
6.2. Appcast Warranties to Customer.Subject to scheduled outages for maintenance, which shall be announced to Customer, and other downtime, Appcast shall, solely with respect to the Appcast Platforms(as set forth in the Insertion Order), use commercially reasonable efforts to make i) the Appcast Platforms available for use by Authorized Users 99.9% of the time during the Term but makes no guarantee of continuous availability or uninterrupted use of the Services and ii) the Appcast Platforms available 365 days per year during the Term, but will only provide availability of Appcast employees for active management of the Services during non-holiday weeks, Monday through Friday, 8:00am EST to 6:00pm EST during the Term. Appcast makes no guarantee of continuous availability or uninterrupted use of the Appcast Platforms or Services. Appcast warrants that, during the Term, Appcast will , perform the Services in a professional workmanlike manner substantially in accordance with industry standards, the Documentation and any applicable Insertion Order. Appcast’s sole obligation and Customer’s exclusive remedy for any unavailability of the Appcast Platforms is as follows: If an Appcast Platform is unavailable for more than twenty-four (24) consecutive hours Customer may receive an extension of the Term for a period of time equal to the period of time the Appcast Platform was unavailable. The remedies available to Customer as set forth in the preceding sentence are conditioned upon Customer notifying Appcast of the unavailability of the Appcast Platform in writing promptly upon becoming aware of such Appcast Platform outage and providing Appcast with sufficient documentation of the Appcast Platform outage to enable Appcast to reproduce and verify the same.
6.3 Limitation. The limited warranty set forth in this Section 6 shall not be applicable in the event that any outage or Appcast Platform failure arises from (a) any modification to the Appcast Platforms not made by or at the direction of Appcast, (b) use of the Appcast Platforms in a manner not described in the Documentation or the Agreement, (c) use of the Appcast Platforms in any unlawful, improper or inappropriate manner or for any unlawful, improper or inappropriate purpose, (d) the gross negligence or intentional misconduct of Customer, (e) any data, equipment, software, service or resource not provided by Appcast, including but not limited to the Amazon Web Services (AWS) Infrastructure, or (f) any portion of the Appcast Platforms which Appcast designed in accordance with specifications provided by Customer.
6.4 Remedy for Loss of Customer Data. In the event that there is a loss or corruption of Customer’s Data directly caused by Customer’s use of or access to Appcast’s Services (other than the AWS Infrastructure), Appcast will use commercially reasonable efforts to restore or correct such Customer Data promptly. If Appcast is unable to correct or restore such data, Customer’s sole and exclusive remedy shall be to terminate the Agreement and upon such termination Appcast shall refund to Customer a pro-rated portion of any unused Appcast Received Fees.
6.5 Security. Customer is responsible for implementing adequate firewall, passwords, and other security measures to protect Customer’s systems, data and applications from unwanted intrusion, whether over the Internet or by other means. Customer shall maintain commercially reasonable and appropriate technical, physical, administrative, and other organizational precautions and security measures to protect against unauthorized access to and/or misuse of the Appcast Platforms and Outputs. Appcast may, in its reasonable discretion and without penalty, suspend and, upon written notice, cancel Customer’s account if Appcast reasonably suspects or identifies any misuse of or unauthorized access to the Appcast Platforms through Customer’s account.
6.6 Dependencies. Customer acknowledges and agrees that (a) the Services require access to and use of the Internet and that the Internet is an unregulated, public network over which Appcast exerts no control and (b) Appcast has no responsibility for operating and maintaining Customer’s servers and their connection to the Internet to access and use the Services. Although Appcast shall endeavor to guard against any loss to Customer as the result of the failure of vendors or any other third parties (including but not limited to, any Managed Service Publisher, or research vendors) to properly execute their commitments, Appcast will not be responsible for their failure or their other acts or omissions. Customer acknowledges that Appcast has no control over information, or other materials approved by Customer for distribution once they have been published, released or posted in the public as requested or approved by Customer, including, without limitation, via media publishers or job sites. As such, Appcast shall not be responsible for ensuring the accuracy of what any third party publishes or any other resulting third party actions, nor shall Appcast be responsible for any user generated content, or job applications. In addition, Appcast will not be responsible in any manner for ensuring any Customer job posts, materials or services comply with laws, rules, regulations or guidelines specific to Customer’s products, services and industry, or any recruitment, privacy or employment laws in the state in which Customer may be hiring new employees and/or other applicable state (“Customer Specific Laws”). Customer shall be solely responsible for ensuring compliance with all Customer Specific Laws.
6.7 DISCLAIMER OF WARRANTIES. EXCEPT AS STATED IN THIS SECTION 6, APPCAST DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES AND APPCAST PLATFORMS, INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, TITLE, NON-INFRINGMENT, COMPLETENESS, ACCURACY AND FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. APPCAST SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR WILL OPERATE IN COMBINATIONS OR IN A MANNER SELECTED FOR USE BY CUSTOMER, OR THAT THE SERVICES OR APPCAST PLATFORMS WILL BE UNINTERRUPTED OR ERROR-FREE. CUSTOMER ALONE IS RESPONSIBLE FOR ANY COMMUNICATION, MESSAGE, OR OTHER CONTENT THAT ITS AUTHORIZED USERS POST, UPLOAD, SUBMIT, TRANSMIT, OR SHARE VIA THE SERVICES OR THE APPCAST PLATFORMS, INCLUDING ALL CUSTOMER DATA. APPCAST IS NOT AN EMPLOYER WITH RESPECT TO CUSTOMER’S USE OF THE APPCAST PLATFORMS OR SERVICES AND IS NOT RESPONSIBLE FOR ANY EMPLOYMENT DECISIONS MADE BY ANY PERSON OR ENTITY POSTING JOBS VIA THE APPCAST PLATFORMS OR SERVICES. APPCAST DOES NOT ASSUME ANY OBLIGATION TO PERFORM LEGAL REVIEW OF CUSTOMER’S JOB ADS. NOTHING IN THIS AGREEMENT GUARANTEES THE DISPLAY OF CUSTOMER’S JOB OR DISPLAY OF CUSTOMER DATA TO ANY OR ALL OF THE PUBLISHERS’ CANDIDATE TRAFFIC NOR DOES IT GUARANTEE CANDIDATES WILL CLICK ON OR APPLY FOR CUSTOMER’S JOB OR THAT APPLICATIONS MADE TO CUSTOMER’S JOB WILL BE VALID, ACCURATE, OR COMPLETEAPPCAST DOES NOT GUARANTEE ANY SUCCESS OR INCREASE IN EMPLOYEES, OR QUALITY OF EMPLOYEES BY USE OF APPCAST’S SERVICES. APPCAST FURTHER MAKES NO REPRESENTATIONS OR WARRANTIES AND PROVIDES NO INDEMNITIES WITH RESPECT TO ANY THIRD PARTY MATERIALS NOR WITH RESPECT TO ANY JOB APPLICATION, OR ANY OTHER MATERIALS OUTSIDE OF APPCAST’S REASONABLE CONTROL.
LIMITATION OF LIABILITY
7.1 LIMITATION OF LIABILITY. EXCLUDING EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8 OF THE AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE LIABLE IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT OR IN TORT OR UNDER ANY OTHER LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, STRICT LIABILITY AND NEGLIGENCE, FOR ANY SPECIAL INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, EVEN IF SUCH PARTY HAS BEEN MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY DAMAGES RESULTING FROM LOSS OF DATA, LOST PROFITS, LOSS OF USE OF EQUIPMENT, LOSS OF REPUTATION, OR LOST CONTRACTS, OR FOR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS BY CUSTOMER. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEEMNT OR ANY OTHER AGREEMENT BETWEEN THE PARTIES, APPCAST’S TOTAL, AGGREGATE LIABILITY UNDER THIS AGREEMENT OR ANY OTHER AGREEMENT BETWEEN THE PARTIES SHALL BE LIMITED TO THE APPCAST RECEIVED FEES UNDER THE APPLICABLE INSERTION ORDER(S) DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE FIRST EVENT GIVING RISE TO SUCH LIABILITY.NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT MAY BE BROUGHT BY CUSTOMER MORE THAN ONE (1) YEAR AFTER THE FIRST TO OCCUR OF (I) THE TERMINATION OR EXPIRATION OF THE AGREEMENT OR (II) THE EVENT GIVING RISE TO SUCH CAUSE OF ACTION. THIS LIMITATION IS IN ADDITION TO AND NOT IN LIEU OF ANY OTHER LIMITATION OF LIABILITY UNDER THIS SECTION.
7.2 Acknowledgment. Customer acknowledges and agrees that the cost for the Services under the Agreement as set forth in any applicable Insertion Order(s) issued hereunder has been set based on the application of the limitations described in Sections 7.1.
8. INDEMNIFICATION
8.1 Appcast Obligation to Indemnify. Appcast shall defend, indemnify, and hold harmless Customer, from and against any third-party suit, claim, liabilities, damages, losses, judgments, settlements, costs, expenses (including reasonable attorneys’ fees), actions demands, or proceeding (collectively “Losses”) that may be brought, instituted, or may arise against, or be incurred, to the extent such Loss arises from Appcast’s (i) breach of the Agreement; (ii) infringement of intellectual property right of a third party under United States; (iii) gross negligence or willful misconduct in performing the Services under this Agreement; and/or (iv) violation of applicable laws, rules, or regulations.
8.2 Customer Obligation to Indemnify. Customer shall defend, indemnify and hold harmless Appcast and its affiliates and their respective present, former and future officers, directors, employees and agents, and their respective heirs, legal representatives, successors and assigns from and against any third-party suit, claim, liabilities, damages, losses, settlements, judgments, costs, expenses (including reasonable attorneys’ fees), actions demands, or proceeding (collectively “Losses”) that may be brought, instituted, or may arise against, or be incurred, to the extent such Loss arises from or relates to: (i) Customer’s breach of the Agreement; (ii) any Customer Data, job posting, advertising or other forms of communication provided by Customer to Appcast or the Appcast Platforms; (iii) Customer’s hiring practices, employment or job interviewing practices, programs or services; (iv) Customer’s violation of all applicable laws, rules, and regulations.; (v) Customer’s gross negligence or willful misconduct; (vi) modification to the Services, Appcast Platforms, or any deliverables made by or at the direction of Customer, and designed solely in accordance with specifications provided by Customer, with no input by Appcast; and/or (vii) any infringement of intellectual property rights of a third party.
8.3. Indemnification Procedure. When seeking indemnification pursuant to this Agreement, the party seeking indemnification shall (i) promptly notify the indemnifying party in writing of a claim or Loss provided that any failure or delay to provide to such notice shall not affect a party’s obligation to indemnify to the extent the indemnifying party is materially prejudiced by such failure or delay (ii) give the indemnifying party reasonable information, assistance and cooperation required to defend such suit, claim or proceeding, and (iii) allow the indemnifying party to control the defense of any such claim and all negotiations for its settlement or compromise; provided, however, the indemnifying party shall not settle any claim without the indemnitee’s prior written consent, which shall not be unreasonably withheld or delayed. The indemnitee may be represented in the defense of any such claim, at the indemnitee’s expense, by counsel of its selection. The indemnitee shall have no liability for settlements made or costs incurred without its consent. The absence of insurance shall not diminish any responsibility of either party’s obligation to indemnify under the Agreement.
8.4 Injunctive Relief. In the event that an injunctive restraint is obtained against Customer’s use of the Services by reason of infringement or violation of any intellectual property right of a third party, or if in Appcast’s reasonable opinion the Services are likely to become the subject of such an injunction, Appcast shall have the right, at its option, to do one of the following: (i) procure for Customer the right to continue to use the Services provided, (ii) replace or modify the Services so that they become non infringing (so long as the functionality of the Service is not materially impaired), or (iii) if neither of the preceding clauses (i) or(ii) is reasonably practicable, terminate the Agreement governing the Services and refund to Customer a pro-rated portion of any unused prepaid fees.
9. TERM AND TERMINATION
9.1 Term. The Term of this Agreement will be as set forth and defined on the applicable Insertion Order.
9.2 Termination for Breach or Insolvency. Either party may terminate this Agreement for a material breach by the other party, provided the non-breaching party gives the breaching party the right to cure such breach for a period of ten (10) days after providing written notice setting forth the nature of the breach in sufficient detail for the breaching party to attempt to cure it. Appcast reserves the right to immediately restrict and/or prohibit Customer’s use of the Services (including removal of job advertisements), in whole or in part, if Appcast reasonably determines that Customer is violating the terms of the Agreement, or applicable law, rule, regulation or order. Additionally, either party may terminate this Agreement if the other party becomes insolvent, files voluntarily or involuntarily for bankruptcy, makes an assignment for the benefit of creditors, or appoints or suffers appointment of a receiver.
9.3 Effect of Termination of Insertion Order. Termination of any specific Insertion Order other than pursuant to Section 9.2 will have no effect upon any other Insertion Order. Upon any termination of the Agreement, Customer shall, and shall cause all Authorized Users thereunder, to immediately cease using the Services set forth thereunder.
9.4 Effect of Termination of Agreement. For avoidance of doubt, termination of the Agreement will terminate all Insertion Orders then in effect. Upon any termination of the Agreement: (a) Customer shall, and shall cause all Authorized Users to, immediately cease using the Services; (b) Appcast may immediately deactivate Customer’s account; and (c) following ninety (90) days after the termination date, Appcast may delete Customer’s account and all related data; provided that upon Customer’s written request to Appcast received by Appcast no later than thirty (30) days from the effective date of such termination, Appcast shall permit Customer temporary access to the Services for a period not to exceed five (5) days and for the sole purpose of permitting Customer to retrieve any Customer Data accessible through the Services.
9.5 Survival. Any provision of this Agreement which contemplates performance or observance subsequent to its termination or expiration, either explicitly or by its nature, shall continue in full force and effect.
10. CONFIDENTIAL INFORMATION
10.1 Confidential Information. Except as expressly provided herein, the parties agree that the receiving party shall not publish or otherwise disclose and shall not use for any purpose any non-public information about the disclosing party’s business or activities that is proprietary and confidential that is furnished to it by the disclosing party pursuant to the Agreement which (i) if disclosed in tangible form is marked “Confidential” or with other similar designation to indicate its confidential or proprietary nature, or (ii) if disclosed orally is indicated orally to be confidential or proprietary by the disclosing party at the time of such disclosure, or (iii) is confirmed in writing as confidential or proprietary by the disclosing party within a reasonable time after such disclosure, or (iv) by its nature or the circumstances surrounding its disclosure should reasonably be regarded as confidential (collectively, “Confidential Information”). Notwithstanding the foregoing, Confidential Information shall not include information that, in each case as demonstrated by written documentation: (i) was properly in receiving party’s possession or properly known by it, without restriction, prior to receipt from the disclosing party; (ii) was rightfully disclosed to receiving party by a third party without restriction; (iii) is, or becomes generally available to the public or otherwise part of the public domain, other than through any act or omission of the receiving party (or any subsidiary, agent or employee of the receiving party) in breach of the Agreement; (iv) was independently developed by the receiving party without reference to or use of any Confidential Information disclosed by the disclosing party; or (v) is approved in writing by the disclosing party for release. The receiving party shall safeguard the disclosing party’s Confidential Information using at least the degree of care the receiving party uses to protect its most sensitive information and no less than a reasonable degree of care.
10.2 Permitted Disclosures. Notwithstanding the provisions of subsection 10.1, each party may disclose the disclosing party’s Confidential Information to the extent such disclosure is reasonably necessary for: (i) exercising the rights granted to it and fulfilling its obligations under the Agreement, provided such disclosure is only made to the receiving party’s employees, agents, consultants, or representatives with a need to know such Confidential Information and who are bound by a confidentiality agreement or other duty of confidentiality no less restrictive than the duties in this Section; (ii) complying with applicable law, rules, or regulations; or (iii) submitting information to tax or other governmental authorities. If a party is required to make any disclosure of the disclosing party’s Confidential Information in accordance with subsections (ii) and (iii) above, to the extent it can legally do so, it will give reasonable advance written notice to the disclosing party of such intended disclosure, and will use its reasonable efforts to secure confidential treatment of such information prior to its disclosure (such as seeking, or allowing the disclosing party a reasonable opportunity to seek, a protective orders or otherwise).
10.3 Return of Confidential Information. Upon termination of the Agreement for any reason or upon request of the disclosing party at any time, the receiving party will (i) promptly return to the disclosing party the original and all copies of all Confidential Information or, in lieu thereof, certify that all such Confidential Information has been destroyed; and (ii) destroy all notes and copies thereof made by receiving party containing any Confidential Information, provided that neither party shall be obligated to return or destroy Confidential Information to the extent necessary to fulfill its obligations and to enforce its rights under the Agreement or to the extent otherwise required by law, regulation, legal, regulatory or judicial process, rule or practice governing professionals or any internal compliance policy or procedure relating to the safeguarding or backup storage of data; provided that any such Confidential Information so not returned or destroyed shall remain subject to the confidentiality and use covenants contained herein, without regard to term.
10.4 Remedies for Breach of Confidentiality Obligations. The parties agree that any breach or threatened breach of this Section 10 by the receiving party may cause not only financial harm, but irreparable harm to the disclosing party; and that money damages may not provide an adequate remedy for such harm. In the event of a breach or threatened breach of this Section 10 by receiving party, the disclosing party shall, in addition to any other rights and remedies it may have, be entitled to seek an injunction (without the necessity of posting any bond or surety) restraining the receiving party from disclosing or using, in whole or in part, any Confidential Information.
11. GENERAL PROVISIONS
11.1 Non-Discrimination. Customer represents and warrants that through its use of the Services, it will not discriminate against any employee or applicant for employment because of race, color, religion, disability, sex, national origin, age, physical or mental disability, veteran status, or any other unlawful criterion and that it shall comply with all applicable laws against discrimination and all applicable rules, regulations and orders issued thereunder or in implementation thereof including, but not limited to, Executive Order 11246. Customer further warrants that it shall comply with all applicable provisions of the Americans with Disabilities Act (“ADA”).
11.2 Governing Law; Jurisdiction. The Agreement shall be governed by, and construed in accordance with, the laws of the State of New Hampshire without giving effect to its choice of law rules, and excluding any application of the United Nations Convention on Contracts for the International Sale of Goods. The courts of the State of New Hampshire shall have exclusive jurisdiction over any proceeding to enforce the rights of any party under the Agreement, and each party waives all rights to object to the jurisdiction of such courts because of inconvenience of forum.
11.3 Assignment. Neither the Agreement nor the rights granted hereunder shall be assigned or transferred by Customer without the prior written consent of Appcast, such consent not to be unreasonably withheld, and any attempted transfer without such consent shall be void and have no force or effect, provided, however, Customer may assign the Agreement to an entity that acquires all or substantially all of its assets or business without Appcast’s consent. Appcast may assign the Agreement, in whole or in part, upon written notice to Customer. Without limiting the generality of the foregoing, Appcast may fulfill any of its obligations under the Agreement by engaging the service of any independent third party. For purposes of this Section, a merger, acquisition or change of control of Customer shall be deemed to be an assignment. The Agreement shall inure to the benefit of the parties and their permitted successors and assigns.
11.4 Waivers. Any waiver by a party of any breach of any provision of the Agreement by the other party must be in writing to be effective and shall not constitute a waiver of any subsequent breach of the same or any other provision. No waiver by a party, if any granted, of any breach, default or violation of any term, warranty, representation, covenant, condition or provision of the Agreement and/or any Insertion Order shall constitute a waiver by such party of any subsequent breach, default or violation of any term, warranty, representation, agreement, covenant, condition or provision.
11.5 Complete Agreement. The parties agree that the terms in this Agreement are the complete and exclusive statements regarding the subject matter hereof and supersede all prior agreements, understandings and communications, oral or written, between the parties regarding the subject matter of the Agreement. In the event there is any conflict between the Terms and Conditions in the Agreement, the terms and conditions in any Exhibits to the Agreement, and the terms and conditions in any applicable Insertion Order, the following order of precedence regarding which terms and conditions prevail shall govern:
-Exhibit A or Exhibit B to this Agreement, if applicable to the Services being purchased by Customer;
-these Terms & Conditions;
-any other Exhibits to the Agreement;
-the applicable Insertion Order
provided, however, that the provisions of an amendment, or Insertion Order will prevail over the provisions of the Terms & Conditions, Exhibit A, or Exhibit B to the extent such provisions expressly refer to the provisions in the Terms & Conditions, Exhibit A, or Exhibit B over which such provisions prevail, but only for purposes of the specific Insertion Order containing such express reference. Additional or conflicting terms contained in any standardized form or correspondence of or from Customer are expressly unenforceable under the Agreement unless such terms and conditions are contained in an amendment to this Agreement duly executed by both parties hereto.
11.6 Notices. Any notice by a party under the Agreement shall be in writing and either personally delivered or sent via reputable overnight courier (such as Federal Express) or certified mail, postage prepaid and return receipt requested, addressed to the other party at the address specified on the applicable Insertion Order or such other address of which either party may from time to time notify the other in accordance with this Section 11.6. All notices shall be in English and shall be deemed effective on the date of personal delivery, one day after deposit with an overnight courier, or five days after deposit in the mail.
11.7 Commercial Software. If Customer is an agency, department, or other entity of the United States Government, or funded in whole or in part by the United States Government, or if the Services are acquired by or on behalf of a unit or agency of the United States Government, the partiest agree that the Services are “commercial computer software” or “commercial computer software documentation” and that, absent a written agreement to the contrary, the government’s rights with respect to the Services, including the use, duplication, reproduction, release, modification, disclosure, or transfer of the Services and Documentation is limited by the terms of this Agreement, pursuant to FAR § 12.212 and/or DFARS § 227.7202, as applicable.
11.8 Publicity. Appcast shall be entitled to refer publicly to Customer as one of its customers and to use Customer’s name, brand, and/or logo in connection with promotional, sales, public relations and marketing materials solely to identify Customer as a customer.
11.9 Counterpart Signatures. The Agreement (or any document in which it is incorporated) may be executed in two or more counterparts, each of which shall be deemed to be an original, and each of which together shall constitute a single instrument. The Agreement (or any document in which it is incorporated) may be executed by electronic signature.
11.10 Force Majeure. Except for the obligation to make payments, neither party will be liable for any failure or delay in its performance under the Agreement due to any cause beyond its reasonable control, including acts of war, acts of God, earthquake, flood, embargo, riot, pandemic, sabotage, labor shortage or dispute, governmental act or failure of the Internet, provided that the delayed party: (a) gives the other party prompt notice of such cause, and (b) uses its reasonable commercial efforts to promptly correct such failure or delay in performance. If Appcast is unable to provide the Services for a period of thirty (30) consecutive days as a result of a continuing force majeure event, Customer may cancel the affected service(s).
11.11 Diversity & Inclusion Data. If Customer opts into the Diversity and Inclusion Data service via the Appcast Platforms, then Appcast may place a third-party image tag on your job advertisements that collects aggregated demographic information regarding job seekers who click on those advertisements.
11.12 Agency of Record. Customer authorizes Appcast to act on its behalf and at the direction of Customer in the negotiation and purchase of advertising services related to recruiting candidates to be employed by, or otherwise work for, Customer. In negotiating and purchasing services on Customer’s behalf, Appcast shall have the right to act as an agent for Customer, its disclosed principal, provided the expenditure for such purchase was expressly approved by Customer in accordance with the terms hereof. Customer authorizes Appcast to receive invoices on its behalf for such services. Customer acknowledges and agrees that Customer is still ultimately responsible for financial commitments made to any media by Appcast on Customer’s behalf. Customer further hereby agrees that when Appcast engages with LinkedIn, Indeed, Ziprecruiter, Craigslist, The Stepstone Group, Facebook or any other media on Customer’s behalf, Appcast may, at its sole discretion, agree to such companies’ respective legal terms and conditions of service, as-is written, with no changes to such terms and conditions. If Customer notifies Appcast in writing that it requests changes to legal terms and conditions for certain media services that Appcast is obtaining for Customer on its behalf, then Appcast will work with Customer in good faith to attempt to negotiate those terms with the respective media party, but does not guarantee that such terms will be successfully negotiated.
Exhibit A: AppcastOne Terms
These AppcastOne Terms & Conditions (“AppcastOne Terms”) supplement and form a part of the Terms & Conditions between Appcast and Customer and are herein incorporated into, and a part of, the Agreement . However, these AppcastOne Terms are only applicable to the extent that Customer purchases any Recruitment Media or Traditional Media Services( “AppcastOne Services”) pursuant to the Insertion Order. Capitalized terms used but not defined in these AppcastOne Terms shall have the meanings ascribed to them in the Terms & Conditions or the Insertion Order.
1. Services.
a. As part of the AppcastOne Services, Appcast shall provide management of media acquired by Appcast on behalf of Customer. An Appcast analyst will configure Customer requests, manage third-party publishers, oversee performance, and adjust as needed to maximize the Customer’s media purchases.
b. In order for advertising to be optimized based on specific parameters requested by the Customer, conversion tracking tags must be implemented prior to launch. Appcast will implement such tags in accordance with the Agreement.
c. Customer hereby authorizes Appcast to complete Customer’s media purchase requests. Each request will be in writing (including but not limited to email).
2. Categories of Media. The following categories of media may be managed in connection with the Services:
a. Programmatic Jobs: Appcast delivers programmatic jobs advertising using Appcast’s Platforms and its proprietary programmatic job advertising technology.
b. Search Engines (e.g., Google, Bing): Advertise jobs using search products.
c. Social Networks (e.g., LinkedIn, Facebook): Advertise jobs on social media platforms and applications.
d. Subscriptions: Create accounts and subscriptions on customer’s behalf with job advertisement publishers.
e. Traditional Media: Advertise jobs on all other forms of media not covered above.
3. Customer Responsibilities
a. For every media purchase hereunder involving job ads, the Customer must furnish Appcast with their job listings. The Customer acknowledges that job ads published are subject to the specific legal terms and conditions outlined by the third-party media vendors involved and that Appcast will not modify such terms and conditions. Customer acknowledges that these third-party media vendors, including without limitation, search engines and social networks like Google, LinkedIn, Indeed, Facebook, Craigslist, The Stepstone Group, and Zip Recruiter transact on non-negotiable standard terms and conditions. These conditions may, for example, restrict content that infringes on third-party intellectual property rights, privacy rights, explicit or defamatory material, or misleading job advertisements. Pursuant to the foregoing, Customer understands and agrees that such terms and conditions will apply to all media purchased with such third parties on behalf of Customer, and Customer hereby commits to ensuring that all job ads and related materials provided to Appcast for publication strictly adhere to these third-party terms and conditions.
b. Customer may request Appcast to target advertising based on characteristics linked to audience lists Customer has created or obtained. The Customer assures that the information contained in these lists has been collected pursuant to all applicable laws and that Customer is permitted to use all such data for marketing purposes.
c. Certain media providers, such as LinkedIn or Facebook, may mandate individual authorization for Appcast to advertise on behalf of the Customer. The Customer acknowledges and agrees to provide Appcast with such authorization if requested by an applicable media provider.
4. Fees.
a. In some circumstances, Appcast may receive industry standard commissions from Managed Service Publishers when purchasing Customer’s Recruitment Media. In the event Appcast does not receive such commissions from Managed Service Publishers, Appcast may, in its sole discretion, add an additional 15% Appcast fee to the cost of such Recruitment Media. As applicable, such commission from the Managed Service Publishers and/or the additional 15% Appcast fee are collectively referred to as the “Publisher Fee.” The Publisher Fee shall be payable through the Monthly Recruitment Media Budget to the extent not received from Managed Service Publishers. For the avoidance of doubt, it is understood that the Publisher Fee will be retained by Appcast as part of its compensation hereunder.
b. Any bids tracked in a non-US currency shall be billed in that currency.
c. Search & Display and Social Media Change Order Fees: If Customer asks Appcast to change its Recruitment Media content for the Search & Display and/or Social Media Services more than twenty-four (24) hours after Appcast has set up and purchased Recruitment Media for Customer’s communicated campaign content requests (“Change Order Request”), Customer shall pay a $250.00 change-order fee per each Change Order Request, which shall be assessed separately from the Recruitment Media Budget. Appcast will not charge any Change Order Fee without first confirming with Customer in writing that a requested change constitutes a Change Order Request.
5. Additional Terms
Customer may request cancellation of advertising schedules it has previously authorized. Appcast shall use its commercially reasonable efforts to secure such cancellation. In the event that Appcast is able to obtain such cancellation following Customer’s request, Customer shall pay Appcast the cancellation fee set forth in an Insertion Order, or as charged to Appcast by the media vendor. In the event that Appcast is unable to obtain such cancellation or unable to obtain a cancellation within a certain time frame specified by Customer, Customer shall honor and complete all commitments and contracts for media purchases, including without limitation the payment of all committed media expenditures and applicable fees, entered into by Appcast, as authorized by Customer.
Exhibit B: Appcast Brand & Creative Supplemental Terms
These Appcast Brand & Creative Supplemental Terms (“Brand & Creative Terms”) supplement and form a part of the Terms & Conditions and the Agreement between Appcast and Customer and are applicable to the extent that Customer purchases any brand or creative services as further specified on the Insertion Order (“Brand or Creative Services”). Capitalized terms used but not defined in these Brand & Creative Terms shall have the meanings ascribed to them in the Terms & Conditions or the Insertion Order.
1. Scope of Services.
a. Appcast will provide the Brand or Creative Services set forth in the Insertion Order. Customer agrees to provide reasonable cooperation to Appcast in connection with the Brand or Creative Services and will be responsible for providing any materials, direction or approvals that are required to be provided by Customer under the Insertion Order or as otherwise agreed. Appcast will not disseminate any creative content to the public without Customer’s prior written approval.
b. Appcast shall not be liable for any delays in providing the Brand or Creative Services or any Work Product to the extent such delay is caused by Customer’s actions or inactions hereunder, including Customer’s requests for changes in the scope of Brand or Creative Services; and all such delivery shall be extended by the period of any delays caused by Customer.
2. Ownership.
a. Work for Hire. Except for Third Party Materials and Appcast IP (each as defined below), all final, and fully paid for deliverables or materials identified as Customer owned on the Insertion Order, that result from Brand or Creative Services (“Work Product”) shall be considered a “work made for hire” as that term is defined in the Copyright Act of 1976, 17 U.S.C. §101 et seq. and the copyright therein shall be owned by Customer, worldwide, for all purposes. To the extent that any Work Product is not owned by Customer as a work-for-hire, Appcast hereby irrevocably assigns to Customer all of its right, title and interest in and to all such Work Product and shall cause its employees to irrevocably assign to Customer any rights, title and interest that they may have in and to all such Work Product. Appcast will cooperate with Customer at Customer’s reasonable written request and expense (if any such expenses are more than de minimis) to execute all additional necessary documents perfecting or securing Customer’s rights in and to the Work Product.
b. Appcast IP. Customer acknowledges and agrees that all intellectual property, content, tools, know-how, methodologies, processes and other materials or property which Appcast used or controlled prior to the commencement of the Brand or Creative Services, or which is otherwise independently developed by Appcast or its affiliated companies outside of the scope of the Brand or Creative Services, as well as all enhancements, modifications and improvements thereto (collectively “Appcast IP”), shall remain the sole and exclusive property of Appcast. Subject to Customer’s payment in full of all amounts due under the applicable Insertion Order, Appcast hereby grants a fully paid-up, perpetual, non-exclusive, non-transferable license to Customer to use the Appcast IP to the extent integrated into the Work Product, and solely for the benefit of Customer. Customer may not under any circumstance reverse engineer, decompile, modify, create derivative works, or otherwise exploit Appcast IP alone or apart from the Work Product.
c. Third Party Materials. Notwithstanding anything to the contrary, the Parties acknowledge and agree that to the extent Appcast incorporates any third party materials or rights in any Work Product (“Third Party Materials”), the applicable third parties will retain ownership of such Third Party Materials. All Third Party Materials will be licensed, purchased or otherwise procured at Customer’s expense, and Customer agrees to use such Third Party Materials in accordance with all restrictions or limitations on use communicated in writing by Appcast to Customer. Further, Customer shall receive under the third party sublicense only such rights and warranties as are actually provided by such third party licensor, and Appcast’s representations, warranties and indemnification obligations hereunder will not apply to such Third Party Materials.
d. Customer Property. For clarification purposes, Appcast shall acquire no rights of ownership in any material provided by Customer (“Customer Property”) to Appcast in connection with these Brand & Creative Terms. Customer hereby grants to Appcast the right and license to use, modify, transmit and prepare derivative works and otherwise exploit such Customer Property as necessary to provide Brand or Creative Services.
e. Preliminary Materials. Any materials or pitch concepts or materials prepared or proposed by Appcast but not produced or published within the term of the applicable Insertion Order, and any concepts or materials prepared or proposed by Appcast and rejected by Customer, shall remain the property of Appcast (“Preliminary Materials”). Appcast shall have the right to use the Preliminary Materials without limitation; provided, however, that such uses shall not involve the release of any of Customer’s Confidential Information.
3. Representations & Warranties; Disclaimer; Release.
Appcast represents and warrants to Customer that the Work Product as delivered by Appcast will not infringe or otherwise violate the copyright rights of any third party (provided the Work Product is used as intended by the Parties based on a reasonable interpretation of the Insertion Order, and without modification or combination with other materials or information after delivery by Appcast. For the avoidance of doubt, Appcast will not be responsible in any manner for ensuring any Work Product or Brand or Creative Services complies with laws, rules, or regulations applicable to Customer. Notwithstanding the foregoing or anything to the contrary in these Brand & Creative Terms, Customer acknowledges and agrees that unless otherwise expressly agreed to in an applicable Insertion Order, Appcast is not responsible conducting any intellectual property clearance search services in connection with the Brand or Creative Services or Work Product.
4. Effect of Termination.
a. Upon expiration or termination of the Agreement, Customer shall: (i) pay or reimburse Appcast for any expenses incurred or irrevocably committed, or penalty fees for early cancellation of third-party services contracted by Appcast in performing the Brand or Creative Services; and (ii) pay Appcast’s fees for the Brand or Creative Services or Work Product as set forth in the applicable Insertion Order through the effective date of termination.
b. All contracts and other arrangements entered into by Appcast on behalf of Customer (if any), shall (subject to any necessary third party consents) be assigned to Customer or its representative, and Appcast shall be released from the duties, obligations, and liabilities thereof. Customer agrees to pay all charges associated with such assignment, and Appcast agrees to render such assistance as reasonably may be requested to effect such assignment. Customer shall indemnify Appcast against any expense or loss Appcast may incur as a result of a claim by a third party, arising after the assignment of said contract to Customer. Upon the termination of these Brand & Creative Terms, provided that there is no overdue indebtedness then owing by Customer to Appcast, Appcast shall transfer, assign and make available to Customer, or Customer’s representative, all property and materials in Appcast’s possession or control belonging to Customer, including any Customer Property or Work Product that has been paid for by Customer.
