Terms of Use

Appcast™

Dear Customer,

We have updated our terms of use effective August 10, 2016. Here is a quick summary of the updates:

We have updated our company name to Appcast, Inc.
We have added terms that will allow us to reveal the identity of some publishers and allow you to select the directed use of those publishers.
We have added terms to allow for us to provide various services at a later date such as subscription services, pay for performance or pay for usage.
We have updated the jurisdiction of the agreement to New Hampshire.

(Revised and Effective – August 10, 2016)

These Terms of Use govern use of the Appcast website and services. By accessing and continuing to use the Appcast website and services after having an opportunity to review these Terms of Use, you accept the Terms of Use in their entirety and without modification. These Terms of Use constitute a binding agreement between (1) you and the company or organization that employs you (collectively referred to as “you” and “your”) and (2) Appcast, Inc. (referred to herein as “Appcast,” “we,” “us” and “our”). If you do not agree with these Terms of Use, please do not use the Appcast website or services.

We may amend these Terms of Use by posting an amended version on the then current Appcast website and providing you with written notice via electronic means of such amended terms. By continuing to use the website and services following such amendment, you agree to the Terms of Use then posted and will result in an addendum to this agreement.

1. License to Use Services.

Subject to and conditional upon your compliance with these Terms of Use, Appcast provides you with access to our website www.appcast.io (the “Site”) and grants to you a limited, non-exclusive, non-transferable, right and license to use certain services and functionality we may make available to you from time to time via the Site or via a related mobile application, including without limitation, an online job ad exchange service that enables you to upload and promote job ads via a network of websites (as described more completely below, the “Services”). You may authorize your employees and authorized agents (collectively, “Users”) to access and use the Services on your behalf, provided that you will be and remain fully responsible and liable for the acts and omissions of all such Users.

2. Description of Services.

Users have access to the following Services, in a format and according to the technical means that we deem the most appropriate.

2.1 Job Ad Platform Service

Appcast shall provision a license of the Appcast Job Ad Platform for the exclusive use by you and your Users for the sole purpose of posting and managing your job advertisements to the Appcast Publisher Network (as defined in Section 2.2) and to the Appcast Premium Publishers (as defined in Section 2.3). Management of job advertisements via the Job Ad Platform may include: setting per applicant pricing, minimum and maximum limitations on applicants, adding and removing jobs from the platform, etc.

2.2 Appcast Publisher Network Service

As part of the Appcast Job Ad Platform, you may elect to use the Appcast Publisher Network, a network of online job boards and other online advertising media (“Publishers”) that Appcast selects and makes available from time to time. Selection of Publishers within the Appcast Publisher Network is made in Appcast’s sole discretion. Publishers within the Appcast Publisher Network may elect to display your job(s) to candidates on its platform or provide the job to its partner network to provide candidate traffic to your job. Nothing in these Terms of Use guarantees the display of your job to any or all of the Publishers’ candidate traffic nor does it guarantee candidates will apply for your job. All applicants generated from Publishers within the Appcast Publisher Network are done so in a blind fashion, meaning the particular Publisher generating each applicant is not disclosed to you.

2.3 Premium Publishers Service

From time to time, and at Appcast’s sole discretion, certain Publishers may be made available as a “Premium Publisher” meaning the identity of such Publishers are made visible to you. If you request your job ad to be advertised via a Premium Publisher, you will be charged separately for each such selected Premium Publisher in addition to fees associated with each Appcast Driven Application (defined below). Such charge is separate from and in addition to fees associated with the Appcast Publisher Network. In selecting use of those Premium Publishers, you may be required to agree to certain Additional Terms (defined below), including additional fees that may be applied for use of those Services and for additional set-up, including source tracking in your applicant tracking system that attributes the applicant source to both Appcast and the Premium Publisher. Appcast may add or revoke any Publisher from the Premium Publishers at any time.

2.3.1 Subscription to Premium Publishers Service

Under certain circumstances the to the Premium Publishers Service may be made available via a pre-paid monthly subscription (hereinafter referred to as the “Subscription”).

The term of the Subscription will begin on the day you purchase the Subscription and pay the applicable Subscription fee and will continue for the period of time set forth in the Subscription ordering document (the “Initial Term”). The Subscription ordering document may take the form of an order form, insertion order (IO) or purchase order (PO) (herein referred to as “Order Form”), for a duration set forth in the Order Form (“Term”).

The Subscription will automatically renew for additional successive periods of 1 (one) year renewal periods (each a “Renewal Term” and together with the Initial Term, the “Term”), unless notice of termination is given by either Appcast or the User as provided below.

You may cancel your Subscription thirty (30) days before the end of the Term or then-current Renewal Term by notifying Appcast in writing on your intention to discontinue Premium Publishers Service.

Appcast may cancel a User’s Subscription by sending an email to the User with at least thirty (30) days notice, provided that we will refund you any Subscription fees paid in advance for services not yet performed.

Payment for any Subscription month started is due in its entirety.

The Subscription applies to a single Premium Publisher or group of Premium Publishers. The User undertakes to refrain from using the Services for another application than the one for which the Subscription has been originally subscribed.

3. User Responsibilities; Prohibited Conduct.

The Services and Site may be used solely by employers seeking job applicants and in accordance with our standard documentation, which may be published by Appcast and made available to you from time to time. You may not use the Services or Site to determine a consumer’s eligibility for: (a) credit or insurance for personal, family or household purposes; (b) employment; or (c) a government license or benefit. Appcast may not be considered an employer with respect to your use of the Site or Services and we are not responsible for any employment decisions made by any person or entity posting jobs via the Site or Services.

You alone are responsible for any communication, message or other content that Users post, upload, submit, transmit or share on the Site or via the Services, including without limitation any advertisements, data, questions, comments, ideas, suggestions or the like (collectively “User Communications”). We do not endorse or sponsor any such User Communications submitted by you or other users of the Site or Services. We reserve the right to terminate, restrict and/or prohibit your use of the Site and Services (including removal of User Communications), in whole or in part, if we determine, in our sole discretion, that you are violating these Terms of Use, or applicable law, rule, regulation or order or that your conduct is harmful to us, our interests or the interests of another user, a third-party provider, merchant, sponsor, licensor, service provider or any other third party. Subject to the terms and conditions set forth in our Privacy Policy, all User Communications will be treated as non- confidential and nonproprietary information. Accordingly, please do not post, upload, submit or share any User Communications you wish to be kept confidential or for which you expect compensation by Appcast, acknowledgment or attribution.

You will maintain and comply with privacy policies and practices that comply with applicable law and conform to industry best practices. You represent and warrant that your User Communications will not: (a) be false, inaccurate or misleading; (b) infringe any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (c) violate any law, statute, ordinance or regulation (including without limitation consumer protection, unfair competition, anti-discrimination and false advertising); (d) be libelous, threatening, defamatory, harassing, obscene or contain any kind of pornography; (e) 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; (f) create liability for us or cause us to lose (in whole or in part) the services of our Internet service providers or other suppliers; or (g) interfere with the ability of others to enjoy our Site or Services.

Additionally, you represent and warrant that you will not: (h) use any data mining robots, spiders or similar data gathering or extraction methods; (i) violate or attempt to violate the security of the Site or Services; (j) reverse engineer or decompile any part of the Site or Services; (k) aggregate, copy or duplicate any of the Appcast IP or information available via the Site or Services, other than as permitted by these Terms; (l) except for Users, share with a third party any login credentials to the Site or Services; or (m) access data or any part of the Site or Services not intended for you.

You acknowledge that the timely placement of pixels and access to jobs by Appcast relies on the timely communication and action by your applicant tracking system and support career portal vendors.

4. Fees and Payment.

4.1 Fees.

Appcast will calculate the fees owed based on data collected via the Services, which you agree will be the system of record for determining the number of Appcast Driven Applications and corresponding fees. We will invoice you for all fees on a monthly basis. Unless you have pre-paid the fees, you will remit payment to Appcast within thirty (30) days after issuance of each invoice.

4.1.1 Per Applicant Fees

You will pay to Appcast a fee for each Appcast Driven Application (defined below) submitted to you or your application tracking system. “Appcast Driven Application” means a job application generated by an applicant who navigated to your website or app lication tracking system after clicking on a job advertisement published via the Services. The fee for each Appcast Driven Application will be the cost- per-applicant designated by us when you use the Services.

4.1.2 Premium Publisher Fees

In addition to the fees for each Appcast Driven Application, you will pay to Appcast a fee for each Premium Publisher utilized in a calendar month. The Premium Publisher fees are set forth here.

4.1.3 Subscription Fees

The Subscription to the Premium Publishers Service is available in different plans, the fees and characteristics of which are indicated on the Site. The fee for each Subscription is based on various criteria, such as but not limited to, the number of Premium Publishers utilized, number of applications, number of jobs and/or amount of spend through the Service to the Premium Publisher.

The plans may also include “Over Quota fees” that apply when the User exceeds the amounts or volumes included in his Subscription.

Unless otherwise stated, the fees are exclusive of taxes.

4.2 Fee Changes

Except for Subscription-based Premium Publisher Service fees, Appcast may change the fees and payment policies for the Services by notifying you in writing (including email) at least thirty days before the change takes effect.

The Users who do not accept the new fees must cancel their Subscription according to the provisions set out in Section 7. Users who continue to use the Services after the the new fees become effective will be deemed to have accepted them.

5. Proprietary Rights.

The Site and all text, audio, video, pictures, music, images, graphics, web beacons, cookies, pixels, information, data, content, and other technologies or materials displayed or used on, or downloadable from, the Site or via the Services (the “Appcast IP”) are the property of, or used with permission by, Appcast and are protected by copyright, trademark and other laws and may not be used except as permitted in these Terms of Use or with the prior written permission of the owner of such material. You may not modify the Appcast IP in any way or reproduce or publicly display, perform, distribute or otherwise use any such Appcast IP for any public or commercial purpose. Any unauthorized use of Appcast IP may violate copyright laws, trademark laws, laws of privacy and publicity, or other laws, rules and regulations. You may not remove any copyright, trademark or other proprietary notices from the Site or any Appcast IP. All rights to Appcast IP not expressly granted herein are reserved by and to the respective owners of such Appcast IP.

Certain trademarks, trade names, service marks and logos, icons and domain names used or displayed on the Site or via the Services are registered and unregistered trademarks, trade names and service marks owned by Appcast and/or our affiliates. Other trademarks, trade names and service marks used or displayed on the Site are the registered and unregistered trademarks, trade names and service marks owned by their respective owners and used with permission by us. Nothing grants or should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any trademarks, trade names, service marks or logos displayed on the Site or via the Services without our written permission or the written permission of such third-party owner.

You have and shall retain ownership of your User Communications. You declare and warrant to us that you are entitled to transmit, use or post User Communications and have all relevant licenses and consents from any relevant third parties. Further, we and our affiliates are free to use any ideas, concepts, know-how or techniques contained in any User Communication you send via the Site or Service for developing, marketing and providing products and services. You further acknowledge and agree that we own all of the information we collect from job applicants, including information collected via cookies and web beacons regarding job ad views, job application starts and job application completions. Further, in no event will we publicly disclose any performance-related data specific to you.

6. Privacy.

Use of the Site and Services is governed by our Privacy Policy which is incorporated into these Terms of Use by this reference.

7. Discontinuance, Modification & Restrictions.

Without limiting any other rights or remedies, in the event that we determine, in our sole discretion, that you have breached any portion of these Terms of Use, or have otherwise demonstrated conduct that we deem to be inappropriate or unacceptable in our sole discretion, we reserve the right to (i) warn you via e-mail that you have violated the Terms of Use; (ii) delete any User Communications; (iii) temporarily or permanently discontinue your access to the Site or use of the Services, (iv) notify and/or send content to and/or fully cooperate with law enforcement authorities for further action; and/or (v) any other action we deem to be reasonably appropriate. Additionally, except as provided in subsection 2.3.1, we may suspend or discontinue any or all Services at any time by providing you with at least ten (10) days advance notice.

Unless you have purchased a Subscription, you may discontinue using the Services at any time; provided, however, that you will pay Appcast the fees due and payable for any Appcast Driven Applications generated within seven (7) days after the effective date of termination.

In the event you discontinue using the Services or Site or we discontinue providing the Services or Site, the following provisions will survive: Sections 9, 10, 11, 12, 13, 14, 17 and all payment obligations.

8. Links.

From time to time, the Site may contain links to third-party websites. We are not responsible for those websites or the parties that control them. All such links to third-party sites are provided solely as a convenience to you. If you use these links, you will leave our Site and no longer be governed by these Terms of Use or our Privacy Policy. We are not liable for the content, quality, suitability, functionality or legality of any such sites. You hereby waive any claim you might have against us with respect to such sites and their operators. Services or merchandise ordered through these links are not affiliated with us. All matters concerning such merchandise and services are solely between you and the merchants with whom you do business.

9. Disclaimer of Warranties.

YOU EXPRESSLY AGREE THAT USE OF THE SITE AND SERVICES IS AT YOUR SOLE RISK. APPCAST DOES NOT EVALUATE, SCREEN OR CENSOR THE APPLICATIONS SUBMITTED IN CONNECTION WITH THE SERVICES OR THE APPLICANTS THEMSELVES. APPCAST IS NOT INVOLED IN AND DOES NOT CONTROL THE TRANSACTION BETWEEN A JOB APPLICANT AND YOU. ACCORDINGLY, APPCAST IS NOT RESPONSIBLE FOR YOUR INTERACTION WITH ANY PERSON WHO CONTACTS YOU, INCLUDING JOB APPLICANTS, IN CONNECTION WITH YOUR USE OF THE SERVICES OR THE SITE.

THE SITE AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SITE AND SERVICES AVAILABLE AT THE SITE, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.

WE MAKE NO WARRANTY THAT THE SITE OR SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SITE OR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, CURRENT, ACCURATE, COMPLETE OR ERROR FREE. WE PROVIDE OUR SITE AND SERVICES FROM OUR OFFICES WITHIN THE UNITED STATES. WE MAKE NO REPRESENTATION THAT THE SITE AND SERVICES IS APPROPRIATE, LEGAL OR AVAILABLE FOR USE IN OTHER LOCATIONS.

THE WARRANTY DISCLAIMERS SET FORTH IN THIS SECTION 8 DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. PLEASE REFER TO YOUR LOCAL LAWS FOR ANY SUCH PROHIBITIONS

10. Limitation of Liability.

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 YOUR ACCESS TO, INABILITY TO ACCESS, OR YOUR USE OF, THE SITE OR SERVICES PROVIDED HEREIN OR RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR USER COMMUNICATIONS.

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 BY YOU FOR THE SERVICES DURING THE THREE MONTH PERIOD PRIOR TO ANY CLAIM.

THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 10 DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. PLEASE REFER TO YOUR LOCAL LAWS FOR ANY SUCH PROHIBITIONS.

11. Indemnification

UNLESS PROHIBITED BY APPLICABLE LAW, YOU AGREE TO INDEMNIFY AND HOLD HARMLESS EACH OF APPCAST, ITS PARENTS, SUBSIDIARIES, AFFILIATES, AND ALL OF THEIR RESPECTIVEOFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, FROM AND AGAINST ALL LOSSES, EXPENSES, DAMAGES AND COSTS, INCLUDING REASONABLE ATTORNEYS’ FEES, RESULTING FROM OR RELATED TO (1) YOUR USE OF THIS SITE OR ANY SERVICES, (2) THE VIOLATION OF THESE TERMS OF USE BY YOU, OR (3) THE INFRINGEMENT BY YOU, OR ANY OTHER USER USING YOUR ACCOUNT, OF ANY INTELLECTUAL PROPERTY OR OTHER RIGHT OF ANY PERSON OR ENTITY. IF YOU ARE OBLIGATED TO INDEMNIFY US HEREUNDER, WE MAY, IN OUR SOLE DISCRETION, (1) CONTROL THE DEFENSE AND DISPOSITION OF ANY SUCH CLAIMS AT YOUR SOLE COST AND EXPENSE OR (2) REQUIRE YOU TO DEFEND APPCAST WITH COUNSEL OF OUR CHOOSING. WITHOUT LIMITING THE FOREGOING, YOU MAY NOT SETTLE, COMPROMISE OR IN ANY OTHER MANNER DISPOSE OF ANY THIRD-PARTY CLAIM WITHOUT OUR CONSENT.

12. Confidentiality.

You acknowledge and agree that in connection with your use of the Site and/or the Services, you will have access to non-public information relating to the Services (“Confidential Information”), which Confidential Information is owned by and proprietary to Appcast. You will use the same care to protect the confidentiality of the Confidential Information as you use for your own similar information but in no event less than reasonable care. You will use Confidential Information only for the purpose of using the Site and Services as permitted by these Terms of Use. You will promptly return, provide a copy of, or destroy the Confidential Information upon request.

13. Governing Law.

These Terms of Use and your use of the Site and Services 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. By accessing or using the Site or Services, 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 Terms of Use will be admissible in judicial and administrative proceedings based upon or relating to these Terms of Use to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

14. Disputes.

You are solely responsible for your interactions with other users of the Site or the Services. We reserve the right, but not the obligation, to monitor disputes between you and other users.

You may not take legal action against Appcast without first (a) sending us, a detailed written description of the facts and law out of which your claim arises; and (b) negotiating with us, in good faith, toward resolution of the dispute.

15. Force Majeure.

Appcast will not be liable for failure or delay in performing its obligations because of causes beyond its reasonable control, including without limitation acts of God, terrorism, war, riots, fire, earthquake, flood or degradation or failure of third party networks or communications infrastructure.

16. Additional Terms.

From time to time, we may supplement these Terms of Use with additional terms pertaining to specific content or services (“Additional Terms”), which Additional Terms may be added on the site and provided in writing in an addendum to this agreement.to be viewed in connection with the specific content or Services and shall be identified as such. You understand and agree that such Additional Terms are hereby incorporated by reference into the Terms of Use.

17. Miscellaneous.

In the event that any provision of these Terms of Use 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 Terms of Use will remain in full force and effect. Any failure by Appcast to insist upon or enforce strict performance of any provision of these Terms of Use or to exercise any right under these Terms of Use 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.

You represent to us that: (i) you have the authority to access and use the Site and Services according to these Terms of Use; and (ii) you have authority to enter into a binding contract on behalf of the company or organization that employs you. These Terms of Use and any Additional Terms (as such terms shall be identified when posted on the Site) constitute the entire understanding between the parties as to the subject matter hereof, and supersede all prior agreements and understandings. You consent to receive communications from us electronically. We may communicate with you by email or by posting notice on this Site. 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.

18. Contact.

We welcome your comments and questions. Please contact us at: contact@appcast.io

Copyright © 2016 Appcast, Inc. All rights reserved.