(Effective – March 19th, 2019)
These Standard Terms & Conditions (the “Standard Terms”) apply to any party who (i) publishes, accesses, or otherwise uses any information or content that Appcast, Inc. (“we”, “us”, “our”, and “Appcast”) makes available to you (“Appcast Content”), including (a) any job search results, pay-per-click advertisements, links, insertion code, other elements that Appcast provides to you for use on your website (the “Publisher Site”) or other Publisher property (“Appcast Elements”), and (b) any information that Appcast makes available to you via any website owned by Appcast (an “Appcast Site”, and such information “Appcast Site Information”); or (ii) otherwise assents to these Standard Terms. The Standard Terms govern your use of and access to (i) the Appcast Content and (ii) any Appcast Site. All such persons subject to these terms are referred to herein as “you”, “your”, or “Publisher”. By accessing or using any Appcast Content or any Appcast Site, you accept these Standard Terms in their entirety and without modification. These Standard Terms constitute a binding agreement between you and Appcast.
These Standard Terms incorporate by reference any other Appcast terms (found here) that may apply to your use of and access to any Appcast Content or Appcast Site (“Other Appcast Terms”). In the event of any conflict between these Standard Terms and Other Appcast Terms, these Standard Terms will govern.
We may amend these Standard Terms at any time. By continuing to access or use any Appcast Content or Appcast Site following such amendment, you agree to such amended Standard Terms.
Subject to these Standard Terms, you will provide Appcast access to your website (the “Publisher Site”) and will permit Appcast to upload Appcast Elements to the Publisher Site. The foregoing services and any publishing by you of any Appcast Elements are collectively referred to herein as the “Services”.
In accordance with the foregoing, Appcast grants you permission to publish the Appcast Elements subject to these Standard Terms. Any Appcast Elements may only appear on the Publisher Site or other Publisher property at URLs that Appcast has reviewed and accepted for participation (“Approved URLs”). You will use the Appcast Elements solely to provide the Services and in accordance with these Standard Terms. You will use any Appcast Site Information solely in connection with providing the Services and in accordance with these Standard Terms.
Notwithstanding any other terms and conditions set forth on any Publisher Site, Appcast will pay to you a fee designated by Appcast from time to time for each Appcast Driven Application submitted to a customer of Appcast. An “Appcast Driven Application” means a completed job application generated and submitted to an Appcast customer by an applicant after the applicant clicked on a Qualifying Link. A “Qualifying Link” means a link displayed at an Approved URL directing a user to a job using an Appcast Element. Appcast will calculate any and all fees based on data collected via the Appcast system, which you agree will be the sole system of record for determining the number of Appcast Driven Applications and corresponding fees. Notwithstanding the foregoing, (i) Appcast shall not owe any fees for any artificial or fraudulent applications as determined by Appcast, and you will refund Appcast for any payment submitted for any such artificial or fraudulent applications; and (ii) all fees shall be determined by Appcast in its sole discretion. We will pay all fees on a monthly basis. ALTHOUGH WE MAY PROVIDE YOU WITH AN ESTIMATE OF FEES BASED ON A COST-PER-CLICK BASIS, YOU ACKNOWLEDGE AND AGREE THAT IT IS AN ESTIMATE ONLY AND THAT THE ACTUAL FEES PAID TO YOU WILL BE BASED ON THE NUMBER OF APPCAST DRIVEN APPLICATIONS, NOT THE NUMBER OF JOB ADVERTISEMENT CLICKS (UNLESS YOU AND APPCAST OTHERWISE EXPRESSLY AGREE IN WRITING TO PAYMENT ON A COST-PER-CLICK BASIS). In the event that a user submits an application for an expired job, Appcast will have no payment obligation to you.
As between you and Appcast, the Appcast Content and any Appcast Site are the property of Appcast and are protected by copyright, trademark and other laws and may not be used except as permitted in these Standard Terms or with the prior written permission of the owner of such material. You may not modify the Appcast Content in any way or reproduce or publicly display, perform, distribute or otherwise use any such Appcast Content for any public or commercial purpose. Any unauthorized use of Appcast Content may violate copyright laws, trademark laws, laws of privacy and publicity, or other laws, rules and regulations. All rights to Appcast Content not expressly granted herein are reserved by and to the respective owners of such Appcast Content.
You will provide the Services in a professional and workmanlike manner in accordance with industry standards and best practices.
You will comply with all applicable laws, rules, and regulations (“Applicable Laws”), including those expressly listed in the “Privacy” section below. You will promptly notify us in the event you receive any complaint that you have violated any Applicable Law. Any employee or personnel providing the Services shall be trained to comply with all Applicable Law and these Standard Terms.
You will not obtain any information on an applicant utilizing voice communication systems and no information contained in an Appcast Driven Application shall be obtained or input by you, your employees, affiliates, contractors or others acting on your behalf.
You will not (i) access any data on any Appcast Site that is not intended for you; (ii) invade the privacy of, obtain the identity of, or obtain or access personally identifying information, passwords, account information, or other information about others in connection with your use of an Appcast Site; (iii) obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through an Appcast Site; (iv) use any data mining, robots, or similar data gathering and extraction tools in connection with an Appcast Site; (v) register for more than one user account or register for a user account on behalf of an individual other than yourself; (vi) use or attempt to use another’s account, service, or system without our authorization, or create a false identity on an Appcast Site; (vii) impersonate any person or entity, or falsely state or otherwise misrepresent yourself or your affiliation with any person or entity; or (viii) transmit, distribute, introduce, or otherwise make available in any manner through any Appcast Site any computer virus, keyloggers, spyware, worms, Trojan horses, timebombs, or other malicious or harmful programming (collectively, “Viruses”). We do not have an obligation to detect the presence of such Viruses. Your access to any Appcast Site is at your sole risk.
You will maintain and comply with privacy policies and practices (i) that comply with all Applicable Laws, (ii) ensure your compliance with Applicable Law, and (iii) conform to industry best practices. Without limiting the foregoing, (i) you are responsible for providing job applicants with notice of such privacy policies and practices in accordance with industry best practices and all Applicable Laws.
Without limiting your obligation to comply with all Applicable Laws, (i) you will comply with all privacy laws, rules, and regulations including the Telephone Consumer Protection Act (“TCPA”) codified at 47 U.S.C. § 227 (including all rules and regulations promulgated thereunder), (ii) you will maintain and regularly update in accordance with all Applicable Law records of telephone numbers listed on any state or federal “do-not-call” list in order to prevent soliciting or otherwise contacting any such person listed thereon, (iii) you will not contact any person listed on a state or federal “do-not-call” list.
Publisher shall not disclose Appcast Confidential Information without Appcast’s prior written consent. “Appcast Confidential Information” includes without limitation: (a) all Appcast software, technology, programming, specifications, materials, guidelines and documentation relating to its use of Publishers and Appcast Content; (b) click-through rates or other performance statistics relating to its use of Publishers; and (c) any other information that a reasonable person would understand to be confidential or is designated in writing by Appcast as “Confidential” or an equivalent designation.
Appcast may issue a press release announcing the relationship contemplated by this Agreement and will be entitled to refer publicly to you as an Appcast publisher in connection with advertising, marketing, publicity and other promotional activities. You grant to Appcast non-exclusive license to use your name, trademarks, trade names and logos in connection with such promotional activities.
Either party may terminate these Standard Terms at any time for any reason upon written notice to the other party. Any such notice sent to Appcast shall be sent to: firstname.lastname@example.org. Upon any termination, you will immediately (i) delete and discontinue all use of Appcast Content and (ii) return any and all Appcast Confidential Information to Appcast. In the event of any termination, we will pay you the fees then validly due and payable for any Appcast Driven Applications generated and submitted prior to such termination.
THE APPCAST CONTENT AND ANY APPCAST SITE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. APPCAST EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. APPCAST DOES NOT MAKE ANY WARRANTY THAT (i) THE APPCAST CONTENT OR ANY APPCAST SITE WILL MEET PUBLISHER’S REQUIREMENTS; (ii) ACCESS TO ANY APPCAST SITE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE APPCAST CONTENT OR ANY APPCAST SITE WILL BE ACCURATE OR RELIABLE; OR (iv) ANY ERRORS IN THE APPCAST CONTENT OR ANY APPCAST SITE WILL BE CORRECTED.
IN NO EVENT WILL WE BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, SPECIAL OR SIMILAR DAMAGES (OR DAMAGES FROM LOST PROFITS, INTERRUPTION OF BUSINESS, LOST DATA), WHETHER FORSEEABLE OR NOT, WHICH MAY ARISE OUT OF OUR ACCESS TO OR USE OF THE PUBLISHER SITE, THE SERVICES, THE APPCAST CONTENT, OR ANY APPCAST SITE. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, OUR SOLE LIABILITY FOR ANY REASON TO YOU, AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CAUSE OR CLAIM WHATSOEVER, SHALL BE LIMITED TO THE AMOUNT PAID TO YOU FOR THE SERVICES DURING THE THREE-MONTH PERIOD PRIOR TO ANY CLAIM.
To the extent not prohibited by Applicable Law, you agree to indemnify and hold harmless each of Appcast, its parents, subsidiaries, affiliates, and all of their respective officers, directors, employees and agents, from and against all losses, expenses, damages and costs, including reasonable attorneys’ fees, resulting from or related to the following, regardless of whether such actions or omissions occurred prior to or after the effective date of these Standard Terms: (i) your breach of any obligation hereunder, including a breach of any Applicable Law, (ii) your use of or access to the Appcast Content or any Appcast Site, or (iii) or your negligence or willful misconduct.
You are an independent contractor of Appcast, and this Agreement shall not be construed to create any association, partnership, joint venture, employee, or agency relationship between you and Appcast for any purpose, and Appcast shall not control the manner or means by which you or your employees or subcontractors perform the Services, including the time and place you perform the Services. You have no authority (and shall not hold yourself out as having authority) to bind Appcast and you shall not make any agreements or representations on Appcast’s behalf.
These Standard Terms will be governed by and construed in accordance with the laws of the State of New Hampshire, without giving effect to its conflicts of law provisions. You consent and submit to the exclusive jurisdiction and venue of the state and federal courts located in New Hampshire. A printed version of these Standard Terms will be admissible in judicial and administrative proceedings based upon or relating to these Standard Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
You are solely responsible for your interactions with other users of the Publisher Site. You may not take any legal action against Appcast without first (a) sending us, via registered mail or national overnight courier service, a detailed written description of the facts and law out of which your claim arises; and (b) negotiating with us, in good faith, for not less 30 days, toward resolution of the dispute. Any such notice of a dispute must be sent to Appcast at 10 Water Street, Lebanon, NH 03766, and must be received by us within 90 days of a scenario that first gives rise to a dispute.
In all cases, you shall fully be responsible and liable for the acts and omissions of any subcontractor (including its employees) to the same extent as if such acts or omissions were by you or your employees and shall be responsible for all fees and expenses payable to any subcontractor. A breach of these Standard Terms by any subcontractor shall be deemed a breach by you.
In the event that any provision of these Standard Terms conflicts with applicable law, rule, regulation or order or if any provision is held invalid by a court with competent jurisdiction, then such provision will be deemed to be restated to reflect as nearly as possible the original intentions of the parties, and the remainder of these Standard Terms will remain in full force and effect. Any failure by Appcast to insist upon or enforce strict performance of any provision of these Standard Terms or to exercise any right under these Standard Terms will not be construed as a waiver or relinquishment of our right to assert or rely upon any such provision or right in that or any other instance, rather, the same will be and remain in full force and effect.
These Standard Terms constitute the entire understanding between the parties as to your use of Appcast Content and the respective parties’ obligations relating thereto, and supersede all prior agreements and understandings as well as any other terms that Appcast has not expressly agreed to in writing. You may not assign any of your rights hereunder without Appcast’s prior written consent and any such attempt is void. Appcast may freely assign or delegate its rights and obligations hereunder without notice to you. You consent to receive communications from us electronically. We may communicate with you by email. You agree that any notices, disclosures, amendments or other communications provided to you electronically satisfy any requirement, legal or otherwise, that such communication be in writing; provided however, any emails that you send to Appcast (other than as contemplated in the “Termination” section above) shall not constitute communication in writing unless we expressly agree otherwise in writing.