Legal

Appcast™ Premium – Terms of Use

(Revised & Effective – September 1, 2022)

Dear Customer,

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

We may amend these Premium Terms 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 Premium Terms then posted and that such new Premium Terms will result in an addendum to this agreement.

1. DEFINITIONS

1.1    “Ad Exchange” means a service where the Customer (i) is paid on a cost-per-applicant or cost-per-click basis rather than a traditional media cost+ commission model; or (ii) does not disclose publishers or sources to their clients.

1.2    “Aggregate Data” means any information or data accessed, compiled, collected, stored or used by Appcast in connection with the Service, which is aggregated and does not include personally identifiable information. The source of this Aggregate Data is not identifiable.

1.3   “Authorized User” means any employee or individual contractor of Customer, whom Customer has authorized to use the Service and who is bound in writing or by the nature of his/her/its relationship with Customer (i) to protect the confidential information and property of Appcast and (ii) to comply with all restrictions of this Agreement.

1.5    “Customer Data” means any data, information or material submitted to Appcast by Customer.

1.6    “Documentation” means the explanatory and informational materials concerning the Service, in printed or electronic format, and which Appcast has released for general distribution to its customers.

1.7    “Effective Date” means the date that the Term begins, as set forth on the Insertion Order.

1.8    “Insertion Order” means an insertion order issued subject to this Agreement.

1.9.   “Output” means the results generated through use of the Service.

1.10   “Service” means an online service offered by Appcast as listed on the Insertion Order, as such service may be modified by Appcast from time to time, including any software used or made available by Appcast to provide the Service. It excludes any software provided by a third party.

1.11    “Term” means the period that this Agreement is in effect as described in Section 9.1.

1.12    “Third Party Data” means any data, information or material submitted to Appcast via the Service by any third party.

1.13    “Website” means Appcast’s website(s) through which the Service is made available to Customer.

2. SERVICE

2.1       Access to and Use of the Service. Subject to the terms of this Agreement, 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 Service, in accordance with the Documentation and this Agreement and 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 third parties. 

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 Service as permitted hereunder.  Customer shall revoke the User ID of any Authorized User who ceases his or her employment or contractual engagement with Customer.  User IDs shall not be shared or rotated among Authorized Users or issued on a concurrent-usage basis.  Customer must ensure that only Authorized Users have access to and use the Service.  If the Customer is notified or becomes aware that an unauthorized third party has gained access to or used the Service, Customer shall promptly notify Appcast.

2.3         Restrictions.  Customer shall not (a) use the Service in any manner which is not expressly authorized by this 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 Service, in whole or in part; (c) modify, translate or create derivative works of any of the Service; (d) reverse engineer, decompile, disassemble or otherwise reduce any of the Service to source code form; (e) distribute, sublicense, assign, share, timeshare, sell, rent, lease, grant a security interest in, use for service bureau purposes or otherwise transfer the Service or Customer’s right to access and use the Service; (f) remove or modify any copyright, trademark or other proprietary notice of Appcast or its licensors on the Output or contained within the Service; or (g) use the Service to market or sell an Ad Exchange. 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 this Agreement conveys a limited right to use the Service and does not convey title or ownership of the Service to Customer. The Service 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 and its licensors.  Customer agrees and acknowledges that the Service contains the valuable trade secrets and proprietary information of Appcast and its licensors.  Appcast acknowledges and agrees that: (i) Customer Data is Confidential and shall not be disclosed to any third party excepted as required for the fulfillment of Service; and (ii) Customer has the right to create derivate works based on the Output 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 Service any suggestions, enhancements requests, recommendations, or other feedback provide by Customer or any User relating to the Service.

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 all commercially reasonable steps to ensure that no unauthorized persons have access to the Service, and to ensure that no Authorized Users shall take any action which would be in violation of this Agreement.  Such steps shall include, but shall not be limited to, imposing password restrictions on use of the Service, securing the Customer’s system, and administering and monitoring use of the Service.

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 the Service is likely to substantially diminish the value of such Service and 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 this Agreement, 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 this Agreement. 

4. FEES, PAYMENT, AND TAXES

4.1       Invoices.  Customer will receive a single invoice for the Managed Service for activity in the prior month. All invoices shall be due and payable in full within thirty (30) days from the invoice date.  Appcast may charge a late fee on all past due undisputed amounts at the rate of 1.5% per month or, if lower, the maximum rate permitted by applicable law. Customer has a financial obligation to pay Designated Managed Service Publishers.  For avoidance of doubt, in no event shall Appcast be obligated to remit payments to Designated Managed Service Publishers if Appcast has not yet received full and satisfactory payment for all prior payments owed to the Designated Managed Service Publisher from the Customer.  Customer agrees that it is ultimately obligated to remit payment to Designated Managed Service Publisher and Appcast is acting solely as an agent for Customer in collecting payments from the Customer and remitting them to the Designated Managed Service Publisher. If a Designated Managed Service Publisher requires a deposit of funds for Recruitment Media expenditures, Customer shall deposit such funds with Appcast before Appcast makes any expenditures on Customer’s behalf.

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 undisputed amounts or to enforce any of Appcast’s other rights hereunder or at law.

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).  Any bids tracked in a non-US currency, shall be subject to the same payment terms as outlined in the Insertion Order.  On the day following last day of the month, Customer will use the Wall Street Journal’s reported currency conversion rate, with exception if the last day is a weekend or recognized federal holiday in the country of which the bids occurred in which case Customer will use the next business day.

5. USER DATA

5.1       Customer Data Warranty.  Customer represents and warrants that (a) it has the authority and right to transmit Customer Data to Appcast and that it has procured the consents or provided the disclosures necessary to transmit such data; (b) it has the authority and right and to grant the license under Section 5.2; and (c) the use of Customer Data will not infringe the intellectual property rights or other proprietary rights of any third party.  Customer covenants that it will only supply Appcast with data that Customer has the right to supply. 

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 a non-exclusive, worldwide, royalty-free right to use display, transmit, modify and prepare derivative works of the Customer Data in any media for the sole purpose of providing the Service to Customer during the Term.

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 and its licensors are not liable or responsible for any results generated using Third Party Data.

6. LIMITED WARRANTY; DISCLAIMER OF WARRANTY

6.1       Limited Warranty.  Subject to scheduled outages for maintenance, which shall be announced to Customer, and other down-time, Appcast shall use commercially reasonable efforts to make the Service available for use 365 days per year during the Term but will only provide availability of Appcast employees for active management of the Service 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 Service.  Appcast warrants that, during the Term, the Service will, under normal operation as set forth in the Documentation and when used as authorized herein, perform substantially in accordance with the Documentation.  Appcast’s sole obligation and Customer’s exclusive remedy for any unavailability of the Service for more than twenty-four (24) consecutive hours is limited to an extension of the Term for a period of time equal to the period of time the Service 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 Service in writing immediately upon becoming aware of such Service outage, and providing Appcast with sufficient documentation of the Service outage to enable Appcast to reproduce and verify the same.

6.2       Limitation.  The limited warranty set forth in this Section 6 shall not be applicable in the event that any outage or Service failure arises from (a) any modification to the  Service not made by or at the direction of Appcast, (b) use of the Service in a manner not described in the Documentation or this Agreement, (c) use of the Service in any unlawful, improper or inappropriate manner or for any unlawful, improper or inappropriate purpose, (d) as a result of the gross negligence or intentional misconduct of Customer, (e) any data, equipment, software, service or resource not provided by Appcast, including the Amazon Web Services (AWS) Infrastructure, or (f) any portion of the Service which Appcast designed in accordance with specifications provided by Customer.

6.3       Exclusions.  Customer acknowledges and agrees that the Service is an analytics and bidding tool, but it does not determine what Customer ultimately pays for job advertisements. The Designated Managed Service Publisher shall provide the amounts payable by Customer that will be billed to Customer by Appcast.   

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 use of or access to the Service (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 this Agreement and upon such termination Appcast shall refund to Customer a pro-rated portion of any unused prepaid fees.

6.5       Security.  Customer is responsible for implementing adequate firewall, password and other security measures to protect Customer’s systems, data and applications from unwanted intrusion, whether over the Internet or by other means. 

6.6       Dependencies.  Customer acknowledges and agrees that (a) the Service requires 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 Service.

6.7       DISCLAIMER OF WARRANTIES.  EXCEPT AS STATED IN THIS SECTION 6, APPCAST AND ITS LICENSORS DISCLAIM ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE, INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, COMPLETENESS, ACCURACY AND FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE.  APPCAST AND ITS LICENSORS SPECIFICALLY DISCLAIM ANY WARRANTY THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR WILL OPERATE IN COMBINATIONS OR IN A MANNER SELECTED FOR USE BY CUSTOMER, OR THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.

7. LIMITATION OF LIABILITY

7.1       LIMITATION OF LIABILITY.  EXCEPT FOR ITS INDEMNIFICATION OBLIGATIONS HEREUNDER, EACH PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE MANAGED SERVICE MONTHLY FEES ACTUALLY RECEIVED BY APPCAST UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.

7.2       EXCLUSION OF CONSEQUENTIAL DAMAGES.  IN NO EVENT SHALL APPCAST BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS BY CUSTOMER.  IN NO EVENT SHALL EITHER APPCAST OR ITS LICENSORS BE LIABLE TO CUSTOMER FOR ANY DAMAGES RESULTING FROM LOSS OF DATA, LOST PROFITS, LOSS OF USE OF EQUIPMENT OR LOST CONTRACTS.  IN ADDITION, IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT FOR ANY SPECIAL INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES IN ANY WAY ARISING OUT OF OR IN CONNECTION WITH THE SERVICE, THE USE OR PERFORMANCE OF THE SERVICE OR OUTPUT OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED, EVEN IF SUCH PARTY HAS BEEN MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. 

7.3       Acknowledgment. Customer acknowledges and agrees that the Managed Service Monthly Fee has been set based on the application of the limitations described in Sections 7.1 and 7.2 above.

8. INDEMNIFICATION

8.1       Appcast Obligation to Indemnify.  Appcast shall defend Customer, at Appcast’s expense, in any third-party suit, claim, or proceeding arising from a claim that Customer’s use of the Service as authorized under this Agreement infringes or violates any currently issued United States patent, copyright, trademark or trade secret of any third party, and Appcast will indemnify Customer for all damages, settlements, costs and expenses (including reasonable attorneys’ fees) awarded against Customer in connection with the same; provided, however, that Customer (i) promptly notifies Appcast in writing of such suit, claim or proceeding, (ii) gives Appcast reasonable information, assistance and cooperation required to defend such suit, claim or proceeding, and (iii) allows Appcast (or its designee) to control the defense of any such action and all negotiations for its settlement or compromise; provided, however, Appcast shall not settle any claim without Customer’s prior written consent, which shall not be unreasonably withheld or delayed.  Customer may be represented in the defense of any such claim, at Customer’s expense, by counsel of Customer’s selection.  Appcast shall have no liability for settlements made or costs incurred without its consent.

8.2       Customer Obligation to Indemnify.  Customer shall defend Appcast, at Customer’s expense, in any third-party suit, claim, or proceeding arising from Customer’s use of the Appcast Service, and Customer will indemnify Appcast for all damages, settlements, costs and expenses (including reasonable attorneys’ fees) awarded against Appcast in connection with the same; provided, however, that Customer shall have no such obligation to the extent that the claim is subject to Appcast’s indemnification obligations set forth in Section 8.1.  Appcast shall (i) promptly notify Customer in writing of such suit, claim or proceeding, (ii) give Customer reasonable information, assistance and cooperation required to defend such suit, claim or proceeding, and (iii) allow Customer (or its designee) to control the defense of any such action and all negotiations for its settlement or compromise; provided, however, Customer shall not settle any claim without Appcast’s prior written consent, which shall not be unreasonably withheld or delayed.  Appcast may be represented in the defense of any such claim, at Appcast’s expense, by counsel of Appcast’s selection. 

8.3       Injunctive Relief.  In the event that an injunctive restraint is obtained against Customer’s use of the Service by reason of infringement or violation of any patent, copyright, trademark or trade secret, or if in Appcast’s opinion the Service is 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 Service provided in this Agreement, (ii) replace or modify the Service so that it becomes non infringing (so long as the functionality of the Service is not materially impaired), or (iii) if neither of the preceding clauses (i) and (ii) is reasonably practicable, terminate this Agreement and refund to Customer a pro-rated portion of any unused prepaid fees.

8.4       Exclusions.  The provisions of Section 8.1 notwithstanding, Appcast shall not have any liability to Customer, and Customer shall indemnify Appcast, to the extent that any claim is based upon (i)  any modification to the Service made by or at the direction of Customer, (ii) use by Customer of the Service in any unlawful manner or in any manner not authorized under this Agreement, or (iii) any claim of infringement or violation of any patent, copyright, trademark or trade secret in which Customer has a direct pecuniary or other material interest, or (iv) any portion of the Service which Appcast designed solely in accordance with specifications provided by Customer.

8.5       Exclusive Remedy.  The indemnification remedies set forth in this Section 8 shall constitute the exclusive remedies of Customer and the sole liability of Appcast with respect to claims of intellectual property infringement or violation.

9. TERM AND TERMINATION

9.1       Term.  Unless earlier terminated pursuant to Section 9.2, this Agreement shall remain in effect from the Effective Date until the end of the Initial Term as set forth on the Insertion Order.  Thereafter, this Agreement will automatically renew for additional successive Renewal Terms, as set forth on the Insertion Order, unless either party provides written notice of non-renewal to the other party. Non-renewal requires at least 30 days written notice in advance of the first day of the month in which the termination shall take effect (“Termination Notice”). The first calendar day of the month that is 30 days or later following the receipt of the Termination Notice shall be the Termination Date. 

9.2       Termination.  Either party may terminate this Agreement if the other party commits a material breach of this Agreement.

9.3       Effect of Termination.  Upon any termination of this Agreement: (a) Customer shall, and shall cause all Authorized Users to, immediately cease using the Service and the Managed Service; (b) Appcast may immediately deactivate Customer’s account;  (c) following  (90) days after the termination date, Appcast may destroy 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 Service 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 Service; and (d) neither Appcast nor any client of Customer who has web beacons, pixels or similar technology in place shall be obligated to remove such technology except on web properties owned exclusively by Customer. 

9.4       Survival. The parties’ rights and obligations under Sections 3, 4, 5.2, 6.7, 7, 8, 9.2, 10 and 11, as well as any obligations to make payments of fees and other amounts accrued prior to termination, shall survive any termination of this Agreement.

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 this 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 disclosing such information 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 this 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 solely to the extent such disclosure is reasonably necessary for: (i) exercising the rights granted to it and fulfilling its obligations under this Agreement, provided such disclosure is only made to the receiving party’s employees, consultants, or representatives with a need to know such Confidential Information and who are bound by a confidentiality agreement or other duty of confidentiality; (ii) prosecuting or defending litigation; (iii) complying with applicable governmental regulations; (iv) 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 (i) through (iv) above, to the extent it may legally do so, it will give reasonable advance written notice to the disclosing party of such disclosure, and will use its reasonable efforts to secure confidential treatment of such information prior to its disclosure (whether through protective orders or otherwise).  In addition, Appcast may need to disclose Customer’s Confidential Information in connection with maintaining, servicing, debugging, operating and upgrading the Service, provided such disclosure is limited to the amount necessary for such maintenance, servicing, debugging, operations and upgrades. 

10.3     Return of Confidential Information.  Upon termination of this Agreement for any reason or upon request of the disclosing party at any time, the receiving party will (i) promptly return to 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 Obligation.  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 of this Agreement 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.

10.5     Date of Effectiveness.  The obligations described in this Section 10 are effective as of the last signature date set forth on the Insertion Order.

11. GENERAL PROVISIONS

11.1     Non-Discrimination.   Customer  represents  and  warrants  that  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.  This 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.  This Agreement shall be deemed to have been executed and delivered by both parties in the State of New Hampshire. The courts of the State of New Hampshire shall have exclusive jurisdiction over any proceeding to enforce the rights of any party under this Agreement, and each party waives all rights to object to the jurisdiction of such courts because of inconvenience of forum.

11.3     Assignment.  Neither this 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 this Agreement to an entity that acquires all or substantially all of its assets or business without Appcast’s consent.  Appcast may assign this 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 this Agreement by engaging the service of any independent third party, provided Appcast remains responsible for such performance. For purposes of this Section, a merger, acquisition or change of control of Customer shall be deemed to be an assignment.  This 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 this 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.

11.5     Complete Agreement. The parties agree that this Agreement (including the Insertion Order) is the complete and exclusive statement regarding the subject matter hereof and supersedes all prior agreements, understandings and communications, oral or written, between the parties regarding the subject matter of this Agreement.  Except as otherwise provided herein, additional or conflicting terms contained in any standardized form or correspondence of or from Customer are expressly unenforceable under this 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 this Agreement shall be in writing and either personally delivered, delivered by facsimile 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 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, upon confirmation of a facsimile transmission, one day after deposit with an overnight courier, or five days after deposit in the mail. 

11.7    Compliance with Laws.  Each party shall comply with (i) all applicable United States laws and regulations which may govern the use of software by entities or persons located abroad, including without limitation the Export Administration Act of 1979, as amended (the “Act”), any successor legislation and the Export Administration Regulations issued by the Department of Commerce under the Act, and (ii) all applicable foreign laws and regulations, including, without limitation, laws with respect to the privacy and transmission of information and data.

11.8     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 Service is acquired by or on behalf of a unit or agency of the United States Government, the Government agrees that the Service is “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 Service, including the use, duplication, reproduction, release, modification, disclosure, or transfer of the Service and Documentation is limited by the terms of this Agreement, pursuant to FAR § 12.212 and/or DFARS § 227.7202, as applicable. 

11.9   Publicity.   Each party may issue press releases announcing the relationship contemplated by this Agreement upon the prior written consent of the other party.  Appcast shall be entitled to refer publicly to Customer as one of its subscribers 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 subscriber.

11.10   Counterpart and Facsimile Signatures.  This Agreement 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.  This Agreement may be executed by facsimile signature.

11.11   Force Majeure.  Except for the obligation to make payments, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including acts of war, acts of God, earthquake, flood, embargo, riot, 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 Service for a period of thirty (30) consecutive days as a result of a continuing force majeure event, Customer may cancel the affected service(s).

11.12   Diversity & Inclusion Data.  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.

Appcast™ Premium UK – Terms of Use

(Revised & Effective – September 1, 2022)

Dear Customer,

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

We may amend these Premium Terms 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 Premium Terms then posted and that such new Premium Terms will result in an addendum to this agreement.

1. DEFINITIONS

1.1    “Ad Exchange” means a service where the Customer (i) is paid on a cost-per-applicant or cost-per-click basis rather than a traditional media cost+ commission model; or (ii) does not disclose publishers or sources to their clients.

1.2    “Aggregate Data” means any information or data accessed, compiled, collected, stored or used by Appcast in connection with the Service, which is aggregated and does not include personally identifiable information. The source of this Aggregate Data is not identifiable.

1.3   “Authorized User” means any employee or individual contractor of Customer, whom Customer has authorized to use the Service and who is bound in writing or by the nature of his/her/its relationship with Customer (i) to protect the confidential information and property of Appcast and (ii) to comply with all restrictions of this Agreement.

1.5    “Customer Data” means any data, information or material submitted to Appcast by Customer.

1.6    “Documentation” means the explanatory and informational materials concerning the Service, in printed or electronic format, and which Appcast has released for general distribution to its customers.

1.7    “Effective Date” means the date that the Term begins, as set forth on the Insertion Order.

1.8    “Insertion Order” means an insertion order issued subject to this Agreement.

1.9.   “Output” means the results generated through use of the Service.

1.10   “Service” means an online service offered by Appcast as listed on the Insertion Order, as such service may be modified by Appcast from time to time, including any software used or made available by Appcast to provide the Service. It excludes any software provided by a third party.

1.11    “Term” means the period that this Agreement is in effect as described in Section 9.1.

1.12    “Third Party Data” means any data, information or material submitted to Appcast via the Service by any third party.

1.13    “Website” means Appcast’s website(s) through which the Service is made available to Customer.

2. SERVICE

2.1       Access to and Use of the Service. Subject to the terms of this Agreement, 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 Service, in accordance with the Documentation and this Agreement and 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 third parties. 

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 Service as permitted hereunder.  Customer shall revoke the User ID of any Authorized User who ceases his or her employment or contractual engagement with Customer.  User IDs shall not be shared or rotated among Authorized Users or issued on a concurrent-usage basis.  Customer must ensure that only Authorized Users have access to and use the Service.  If the Customer is notified or becomes aware that an unauthorized third party has gained access to or used the Service, Customer shall promptly notify Appcast.

2.3         Restrictions.  Customer shall not (a) use the Service in any manner which is not expressly authorized by this 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 Service, in whole or in part; (c) modify, translate or create derivative works of any of the Service; (d) reverse engineer, decompile, disassemble or otherwise reduce any of the Service to source code form; (e) distribute, sublicense, assign, share, timeshare, sell, rent, lease, grant a security interest in, use for service bureau purposes or otherwise transfer the Service or Customer’s right to access and use the Service; (f) remove or modify any copyright, trademark or other proprietary notice of Appcast or its licensors on the Output or contained within the Service; or (g) use the Service to market or sell an Ad Exchange. 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 this Agreement conveys a limited right to use the Service and does not convey title or ownership of the Service to Customer. The Service 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 and its licensors.  Customer agrees and acknowledges that the Service contains the valuable trade secrets and proprietary information of Appcast and its licensors.  Appcast acknowledges and agrees that: (i) Customer Data is Confidential and shall not be disclosed to any third party excepted as required for the fulfillment of Service; and (ii) Customer has the right to create derivate works based on the Output 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 Service any suggestions, enhancements requests, recommendations, or other feedback provide by Customer or any User relating to the Service.

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 all commercially reasonable steps to ensure that no unauthorized persons have access to the Service, and to ensure that no Authorized Users shall take any action which would be in violation of this Agreement.  Such steps shall include, but shall not be limited to, imposing password restrictions on use of the Service, securing the Customer’s system, and administering and monitoring use of the Service.

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 the Service is likely to substantially diminish the value of such Service and 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 this Agreement, 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 this Agreement.

3. FEES, PAYMENT, AND TAXES

4.1       Invoices.  Customer will receive a single invoice for the Managed Service for activity in the prior month. All invoices shall be due and payable in full within thirty (30) days from the invoice date.  Appcast may charge a late fee on all past due undisputed amounts at the rate of 1.5% per month or, if lower, the maximum rate permitted by applicable law. Customer has a financial obligation to pay Designated Managed Service Publishers.  For avoidance of doubt, in no event shall Appcast be obligated to remit payments to Designated Managed Service Publishers if Appcast has not yet received full and satisfactory payment for all prior payments owed to the Designated Managed Service Publisher from the Customer.  Customer agrees that it is ultimately obligated to remit payment to Designated Managed Service Publisher and Appcast is acting solely as an agent for Customer in collecting payments from the Customer and remitting them to the Designated Managed Service Publisher. If a Designated Managed Service Publisher requires a deposit of funds for Recruitment Media expenditures, Customer shall deposit such funds with Appcast before Appcast makes any expenditures on Customer’s behalf.

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 undisputed amounts or to enforce any of Appcast’s other rights hereunder or at law.

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).  Any bids tracked in a non-US currency, shall be subject to the same payment terms as outlined in the Insertion Order.  On the day following last day of the month, Customer will use the Wall Street Journal’s reported currency conversion rate, with exception if the last day is a weekend or recognized federal holiday in the country of which the bids occurred in which case Customer will use the next business day.

5. USER DATA

5.1       Customer Data Warranty.  Customer represents and warrants that (a) it has the authority and right to transmit Customer Data to Appcast and that it has procured the consents or provided the disclosures necessary to transmit such data; (b) it has the authority and right and to grant the license under Section 5.2; and (c) the use of Customer Data will not infringe the intellectual property rights or other proprietary rights of any third party.  Customer covenants that it will only supply Appcast with data that Customer has the right to supply. 

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 a non-exclusive, worldwide, royalty-free right to use display, transmit, modify and prepare derivative works of the Customer Data in any media for the sole purpose of providing the Service to Customer during the Term.

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 and its licensors are not liable or responsible for any results generated using Third Party Data.

6. LIMITED WARRANTY; DISCLAIMER OF WARRANTY

6.1       Limited Warranty.  Subject to scheduled outages for maintenance, which shall be announced to Customer, and other down-time, Appcast shall use commercially reasonable efforts to make the Service available for use 365 days per year during the Term but will only provide availability of Appcast employees for active management of the Service 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 Service.  Appcast warrants that, during the Term, the Service will, under normal operation as set forth in the Documentation and when used as authorized herein, perform substantially in accordance with the Documentation.  Appcast’s sole obligation and Customer’s exclusive remedy for any unavailability of the Service for more than twenty-four (24) consecutive hours is limited to an extension of the Term for a period of time equal to the period of time the Service 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 Service in writing immediately upon becoming aware of such Service outage, and providing Appcast with sufficient documentation of the Service outage to enable Appcast to reproduce and verify the same.

6.2       Limitation.  The limited warranty set forth in this Section 6 shall not be applicable in the event that any outage or Service failure arises from (a) any modification to the  Service not made by or at the direction of Appcast, (b) use of the Service in a manner not described in the Documentation or this Agreement, (c) use of the Service in any unlawful, improper or inappropriate manner or for any unlawful, improper or inappropriate purpose, (d) as a result of the gross negligence or intentional misconduct of Customer, (e) any data, equipment, software, service or resource not provided by Appcast, including the Amazon Web Services (AWS) Infrastructure, or (f) any portion of the Service which Appcast designed in accordance with specifications provided by Customer.

6.3       Exclusions.  Customer acknowledges and agrees that the Service is an analytics and bidding tool, but it does not determine what Customer ultimately pays for job advertisements. The Designated Managed Service Publisher shall provide the amounts payable by Customer that will be billed to Customer by Appcast.   

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 use of or access to the Service (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 this Agreement and upon such termination Appcast shall refund to Customer a pro-rated portion of any unused prepaid fees.

6.5       Security.  Customer is responsible for implementing adequate firewall, password and other security measures to protect Customer’s systems, data and applications from unwanted intrusion, whether over the Internet or by other means. 

6.6       Dependencies.  Customer acknowledges and agrees that (a) the Service requires 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 Service.

6.7       DISCLAIMER OF WARRANTIES.  EXCEPT AS STATED IN THIS SECTION 6, APPCAST AND ITS LICENSORS DISCLAIM ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE, INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, COMPLETENESS, ACCURACY AND FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE.  APPCAST AND ITS LICENSORS SPECIFICALLY DISCLAIM ANY WARRANTY THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR WILL OPERATE IN COMBINATIONS OR IN A MANNER SELECTED FOR USE BY CUSTOMER, OR THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.

7. LIMITATION OF LIABILITY

7.1       LIMITATION OF LIABILITY.  EXCEPT FOR ITS INDEMNIFICATION OBLIGATIONS HEREUNDER, EACH PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE MANAGED SERVICE MONTHLY FEES ACTUALLY RECEIVED BY APPCAST UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.

7.2       EXCLUSION OF CONSEQUENTIAL DAMAGES.  IN NO EVENT SHALL APPCAST BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS BY CUSTOMER.  IN NO EVENT SHALL EITHER APPCAST OR ITS LICENSORS BE LIABLE TO CUSTOMER FOR ANY DAMAGES RESULTING FROM LOSS OF DATA, LOST PROFITS, LOSS OF USE OF EQUIPMENT OR LOST CONTRACTS.  IN ADDITION, IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT FOR ANY SPECIAL INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES IN ANY WAY ARISING OUT OF OR IN CONNECTION WITH THE SERVICE, THE USE OR PERFORMANCE OF THE SERVICE OR OUTPUT OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED, EVEN IF SUCH PARTY HAS BEEN MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. 

7.3       Acknowledgment. Customer acknowledges and agrees that the Managed Service Monthly Fee has been set based on the application of the limitations described in Sections 7.1 and 7.2 above.

8. INDEMNIFICATION

8.1       Appcast Obligation to Indemnify.  Appcast shall defend Customer, at Appcast’s expense, in any third-party suit, claim, or proceeding arising from a claim that Customer’s use of the Service as authorized under this Agreement infringes or violates any currently issued United States patent, copyright, trademark or trade secret of any third party, and Appcast will indemnify Customer for all damages, settlements, costs and expenses (including reasonable attorneys’ fees) awarded against Customer in connection with the same; provided, however, that Customer (i) promptly notifies Appcast in writing of such suit, claim or proceeding, (ii) gives Appcast reasonable information, assistance and cooperation required to defend such suit, claim or proceeding, and (iii) allows Appcast (or its designee) to control the defense of any such action and all negotiations for its settlement or compromise; provided, however, Appcast shall not settle any claim without Customer’s prior written consent, which shall not be unreasonably withheld or delayed.  Customer may be represented in the defense of any such claim, at Customer’s expense, by counsel of Customer’s selection.  Appcast shall have no liability for settlements made or costs incurred without its consent.

8.2       Customer Obligation to Indemnify.  Customer shall defend Appcast, at Customer’s expense, in any third-party suit, claim, or proceeding arising from Customer’s use of the Appcast Service, and Customer will indemnify Appcast for all damages, settlements, costs and expenses (including reasonable attorneys’ fees) awarded against Appcast in connection with the same; provided, however, that Customer shall have no such obligation to the extent that the claim is subject to Appcast’s indemnification obligations set forth in Section 8.1.  Appcast shall (i) promptly notify Customer in writing of such suit, claim or proceeding, (ii) give Customer reasonable information, assistance and cooperation required to defend such suit, claim or proceeding, and (iii) allow Customer (or its designee) to control the defense of any such action and all negotiations for its settlement or compromise; provided, however, Customer shall not settle any claim without Appcast’s prior written consent, which shall not be unreasonably withheld or delayed.  Appcast may be represented in the defense of any such claim, at Appcast’s expense, by counsel of Appcast’s selection. 

8.3       Injunctive Relief.  In the event that an injunctive restraint is obtained against Customer’s use of the Service by reason of infringement or violation of any patent, copyright, trademark or trade secret, or if in Appcast’s opinion the Service is 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 Service provided in this Agreement, (ii) replace or modify the Service so that it becomes non infringing (so long as the functionality of the Service is not materially impaired), or (iii) if neither of the preceding clauses (i) and (ii) is reasonably practicable, terminate this Agreement and refund to Customer a pro-rated portion of any unused prepaid fees.

8.4       Exclusions.  The provisions of Section 8.1 notwithstanding, Appcast shall not have any liability to Customer, and Customer shall indemnify Appcast, to the extent that any claim is based upon (i)  any modification to the Service made by or at the direction of Customer, (ii) use by Customer of the Service in any unlawful manner or in any manner not authorized under this Agreement, or (iii) any claim of infringement or violation of any patent, copyright, trademark or trade secret in which Customer has a direct pecuniary or other material interest, or (iv) any portion of the Service which Appcast designed solely in accordance with specifications provided by Customer.

8.5       Exclusive Remedy.  The indemnification remedies set forth in this Section 8 shall constitute the exclusive remedies of Customer and the sole liability of Appcast with respect to claims of intellectual property infringement or violation.

9. TERM AND TERMINATION

9.1       Term.  Unless earlier terminated pursuant to Section 9.2, this Agreement shall remain in effect from the Effective Date until the end of the Initial Term as set forth on the Insertion Order.  Thereafter, this Agreement will automatically renew for additional successive Renewal Terms, as set forth on the Insertion Order, unless either party provides written notice of non-renewal to the other party. Non-renewal requires at least 30 days written notice in advance of the first day of the month in which the termination shall take effect (“Termination Notice”). The first calendar day of the month that is 30 days or later following the receipt of the Termination Notice shall be the Termination Date. 

9.2       Termination.  Either party may terminate this Agreement if the other party commits a material breach of this Agreement.

9.3       Effect of Termination.  Upon any termination of this Agreement: (a) Customer shall, and shall cause all Authorized Users to, immediately cease using the Service and the Managed Service; (b) Appcast may immediately deactivate Customer’s account;  (c) following  (90) days after the termination date, Appcast may destroy 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 Service 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 Service; and (d) neither Appcast nor any client of Customer who has web beacons, pixels or similar technology in place shall be obligated to remove such technology except on web properties owned exclusively by Customer. 

9.4       Survival. The parties’ rights and obligations under Sections 3, 4, 5.2, 6.7, 7, 8, 9.2, 10 and 11, as well as any obligations to make payments of fees and other amounts accrued prior to termination, shall survive any termination of this Agreement.

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 this 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 disclosing such information 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 this 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 solely to the extent such disclosure is reasonably necessary for: (i) exercising the rights granted to it and fulfilling its obligations under this Agreement, provided such disclosure is only made to the receiving party’s employees, consultants, or representatives with a need to know such Confidential Information and who are bound by a confidentiality agreement or other duty of confidentiality; (ii) prosecuting or defending litigation; (iii) complying with applicable governmental regulations; (iv) 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 (i) through (iv) above, to the extent it may legally do so, it will give reasonable advance written notice to the disclosing party of such disclosure, and will use its reasonable efforts to secure confidential treatment of such information prior to its disclosure (whether through protective orders or otherwise).  In addition, Appcast may need to disclose Customer’s Confidential Information in connection with maintaining, servicing, debugging, operating and upgrading the Service, provided such disclosure is limited to the amount necessary for such maintenance, servicing, debugging, operations and upgrades. 

10.3     Return of Confidential Information.  Upon termination of this Agreement for any reason or upon request of the disclosing party at any time, the receiving party will (i) promptly return to 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 Obligation.  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 of this Agreement 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.

10.5     Date of Effectiveness.  The obligations described in this Section 10 are effective as of the last signature date set forth on the Insertion Order.

11. GENERAL PROVISIONS

11.1     Non-Discrimination.   Customer  represents  and  warrants  that  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.  This 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.  This Agreement shall be deemed to have been executed and delivered by both parties in the State of New Hampshire. The courts of the State of New Hampshire shall have exclusive jurisdiction over any proceeding to enforce the rights of any party under this Agreement, and each party waives all rights to object to the jurisdiction of such courts because of inconvenience of forum.

11.3     Assignment.  Neither this 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 this Agreement to an entity that acquires all or substantially all of its assets or business without Appcast’s consent.  Appcast may assign this 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 this Agreement by engaging the service of any independent third party, provided Appcast remains responsible for such performance. For purposes of this Section, a merger, acquisition or change of control of Customer shall be deemed to be an assignment.  This 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 this 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.

11.5     Complete Agreement. The parties agree that this Agreement (including the Insertion Order) is the complete and exclusive statement regarding the subject matter hereof and supersedes all prior agreements, understandings and communications, oral or written, between the parties regarding the subject matter of this Agreement.  Except as otherwise provided herein, additional or conflicting terms contained in any standardized form or correspondence of or from Customer are expressly unenforceable under this 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 this Agreement shall be in writing and either personally delivered, delivered by facsimile 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 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, upon confirmation of a facsimile transmission, one day after deposit with an overnight courier, or five days after deposit in the mail. 

11.7    Compliance with Laws.  Each party shall comply with (i) all applicable United States laws and regulations which may govern the use of software by entities or persons located abroad, including without limitation the Export Administration Act of 1979, as amended (the “Act”), any successor legislation and the Export Administration Regulations issued by the Department of Commerce under the Act, and (ii) all applicable foreign laws and regulations, including, without limitation, laws with respect to the privacy and transmission of information and data.

11.8     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 Service is acquired by or on behalf of a unit or agency of the United States Government, the Government agrees that the Service is “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 Service, including the use, duplication, reproduction, release, modification, disclosure, or transfer of the Service and Documentation is limited by the terms of this Agreement, pursuant to FAR § 12.212 and/or DFARS § 227.7202, as applicable. 

11.9   Publicity.   Each party may issue press releases announcing the relationship contemplated by this Agreement upon the prior written consent of the other party.  Appcast shall be entitled to refer publicly to Customer as one of its subscribers 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 subscriber.

11.10   Counterpart and Facsimile Signatures.  This Agreement 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.  This Agreement may be executed by facsimile signature.

11.11   Force Majeure.  Except for the obligation to make payments, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including acts of war, acts of God, earthquake, flood, embargo, riot, 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 Service for a period of thirty (30) consecutive days as a result of a continuing force majeure event, Customer may cancel the affected service(s).

11.12   Diversity & Inclusion Data.  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.