Casted Terms of Service
The Casted Terms of Service is a master agreement and consists of the general terms and conditions set forth herein, and the terms set forth in an applicable Order Form (defined below) or under an applicable Statement of Work (defined below) (collectively, the "Agreement"). Unless expressly set forth in an Order Form or Statement of Work, the terms and conditions set forth in the Terms of Service shall control in the event of a conflict between the terms and conditions herein, and any Order Form or Statement of Work.
By using the Software Services, you are unconditionally consenting to be bound by and are becoming a party to the terms of this Agreement. From time to time in the Agreement, Client and Casted shall be referred to collectively as, the “Parties” and each individually as, a “Party”.
Section 1. Definitions
Terms defined in this Section 1 and parenthetically defined elsewhere shall have the same meaning throughout the Agreement.
- "Benchmark Data” means statistical, system, usage, and configuration data regarding the Client's compliance with the Agreement and Client's usage of the Software Services that: (i) does not specifically identify Client or Client's customers; and, (ii) does not consist of any of Client's Confidential Information, provided, however, that Client shall not consider statistical, aggregate data part of its Confidential Information.
- “Client Content” means any logos, videos, multimedia, reports, information, files, documents, data or other content that Casted, its employees, personnel, agents, or end users, share with Casted.
- “Confidential Information" means any nonpublic information (written, oral or electronic) disclosed by one Party to the other Party and shall be deemed to include the following information of the respective Parties, without limitation: (i) the terms and conditions of the Agreement; (ii) customer lists, the names of customer contacts, business plans, technical data, product ideas, personnel, contracts and financial information; (iii) patents, trade secrets, techniques, processes, know-how, business methodologies, schematics, employee suggestions, development tools and processes, computer printouts, computer programs, design drawings and manuals, and improvements; (iv) information about costs, profits, markets and sales; (v) plans for future development and new product concepts; (vi) all documents, books, papers, drawings, models sketches, and other data of any kind and description, including electronic data recorded or retrieved by any means, that have been or will be disclosed, as well as written or oral instructions or comments; or (vii) any data or information stored in the Software Services.
- “Order Form” means the order form document that is executed by both parties and is subject to, governed by, and incorporates by reference, this AGREEMENT, and sets forth the Software Services and Professional Services Casted shall provide to Client.
- “Professional Services” means the professional services provided by Casted to Client under a Statement of Work or the Order Form that describes the professional services to be provided by Casted, which may include, but is not limited to, any implementation, data conversion, set-up, consulting, training, interface, and advisory services.
- “Residuals” means any ideas, concepts, or know-how developed or acquired by Casted during the performance of this Agreement to the extent obtained and retained by Casted (and its personnel) as impression and general learning, and does not include Client’s Confidential Information delivered hereunder.
- “Software Services” means the software services as set forth on the Order Form or a Statement of Work, and provided by Casted, running on one or more computer servers maintained by Casted or a third party on behalf of Casted, and made
available to Client over the Internet.
- “Statement of Work” means a document executed by an authorized representative of each party that sets forth the Professional Services.
- “Work Product” means all patentable subject matter, patent rights, copyrightable subject matter, copyrights, trademarks, trade secrets, know-how, ideas, suggestions, discoveries, designs, processes, computer products, software (both object code and source code), works of authorship, algorithms, formulas, methods, programming, techniques, flowcharts, reports, and all other inventions or developments created during the performance of the Agreement, including, without limitation, during the performance of Professional Services.
Section 2. Software Services
- License Grant. Provided that Client pays all the required fees under the Agreement and complies with all other terms of the Agreement, Casted hereby grants to Client a non-exclusive, terminable, non-transferable right and license to access and use the Software Services pursuant to the Agreement, in and under Casted’s intellectual property rights. Client shall not use or otherwise access the Software Services in a manner that exceeds Client’s authorized use as set forth in the Agreement.
- Restrictions. Client shall not use the Software Services beyond the scope of the rights granted in the Agreement. Client shall be solely liable for its users’ and customers’ access to the Software Services and any misuse of the Software Services
by such customers. Client shall not directly or indirectly alter, modify, adapt, translate, copy, distribute, reverse engineer, decompile, disassemble, or create any derivative works of the Software Services. Client shall not remove, modify or obscure any copyright, trademark or other proprietary rights notices that are contained in the Software Services.
Section 3. Client's Obligations
- Client shall be responsible for obtaining and purchasing all equipment, Internet access services, modifying its network, and doing all other things necessary in order to use the Software Services.
- Client will provide commercially reasonable cooperation with Casted to assist Casted in provision of the Software Services. Casted shall authorize access to and assign unique passwords and user names to Client's end users of the Software Services (“Client Accounts”). Client shall be responsible for any activity occurring through the Client Accounts, including unauthorized activity.
- Client shall use commercially reasonable efforts to prevent unauthorized access to or use of the Software Services and shall promptly notify Casted in the event of any unauthorized access or use of the Software Services and any loss or theft or unauthorized use of any of the Client Accounts.
- Client shall comply with all applicable local, state, federal, and foreign laws, treaties, and regulations applicable to Client's use of the Software Services, including without limitation those related to privacy, electronic communications, and anti-spam legislation.
Section 4. Professional Services
All Professional Services rendered by Casted (if any) shall be governed by the terms and conditions of the Agreement and the applicable Statement of Work or Order Form.
- Performance of Professional Services. Professional Services may, at the discretion of Casted, be performed at: (i) Client's offices, Casted's offices or elsewhere; and (ii) the times designated by Casted. Client shall provide Casted with copies of all materials in Client's possession that Casted may reasonably request to assist Casted in rendering Professional Services hereunder. In addition to all other remedies it has available to it at law or in equity, Casted may suspend the provision of Professional Services during any period when Client has failed to timely pay Casted any amount due under the Agreement and such failure continues for a period of ten (10) or more days following Client’s receipt of notice or a reminder invoice from Casted concerning such nonpayment.
- Client Delay and Changes. Casted shall not be responsible for any delays in the performance of the Professional Services caused by Client. For any Professional Services for which Client's participation is contemplated, Client and Casted shall agree upon the dates to perform such Professional Services. Casted will have no obligation to provide Professional Services other than those specified in any Statement of Work. Client may request additional Professional Services by a separate Statement of Work describing the additional Professional Services to be provided. Unless the parties agree to other rates set forth in a mutually executed Statement of Work, Client will pay for additional work and/or work that falls outside of the scope of a Statement of Work at Casted then-current hourly rates.
Section 5. Payment Terms
- Fees. Client shall pay the fees as set forth on the Order Form, in order to obtain access to the Software Services (the “Subscription Fee”) (collectively, the “Fee(s)”). Notwithstanding the foregoing, the parties may agree in writing to renew the Agreement for longer periods at other mutually agreed upon rates. Client shall pay the Fees for each Renewal Term within thirty (30) days after the start of such Renewal Term.
- Payments for Professional Services. Casted will invoice Client for Professional Services on a time and materials basis. Client shall pay undisputed invoices, or the undisputed portion of any disputed invoice, within thirty (30) days of the invoice date. In order to dispute an invoice or an amount on an invoice, Client must provide written notice to Casted of such dispute prior to the applicable due date for the payment of such fee and such dispute must be reasonable and in good faith. On such invoices, Casted shall charge Client for reasonable travel, lodging and meal expenses, and any other reasonable expenses incurred on behalf of Client in rendering the Professional Services.
- Taxes. Client shall pay all taxes (including without limitation sales, use, property, excise, value added, and gross receipts) levied on the Agreement, except taxes based on Casted’s income. Casted reserves the right to suspend Client's access and/or use of the Software Services and to cease providing Professional Services for any accounts for which any payment of fees is due and unpaid, provided, however, that Casted provides Client a delinquency notice of such nonpayment and at least thirty (30) days have passed since the transmission of such delinquency notice without full payment of the unpaid fees by Client. Client also shall pay to Casted all reasonable expenses incurred by Casted in connection with exercising any of its rights under the Agreement or applicable law with respect to the collection of any payments due Casted (excluding with respect to amounts reasonably disputed by Client in good faith), including reasonable attorneys' fees, court costs, and collection agency fees.
Section 6. Intellectual Property Rights
- Proprietary Rights. Client acknowledges and agrees that Casted retains sole and exclusive ownership of all right, title, and interest in and to the Software Services, including any modification, improvement, enhancement, or configuration made to the Software Services, regardless of who creates, suggests, and/or contributes in any such modification, improvement, enhancement, or configuration.
- Work Product Rights. . Casted agrees to assign and hereby does assign all rights (including all copyrights, patent rights and other intellectual property rights), title and interest in Work Product to Client. Subject to the foregoing, Casted shall have a nonexclusive, nontransferable license to use the Work Product solely to support its business operations.
- Residuals. Client acknowledges and agrees that Client does not have or obtain any rights in any Residuals. Notwithstanding any provision of this Agreement to the contrary, Casted shall be free to use for any purpose, any Residuals resulting from performance hereunder.
- Client Content. Client acknowledges and agrees that in connection with this Agreement, Casted may process and/or receive Client Content. Client shall own all title and intellectual property rights in and to the Client Content. Notwithstanding the foregoing, when Client, its employees, personnel, agents, or end users, upload, submit, or store Client Content in connection with this Agreement, Client grants Casted a worldwide license to use, host, store, reproduce, modify, and create derivative works from the Client Content to perform its obligations under this Agreement. Casted is not responsible for any electronic communications and/or Client Content which are delayed, lost, altered, intercepted or stored during the transmission of any data by means of third party networks (other than third parties providing computing or storage services under the Agreement on behalf of Casted). Without limiting Client's rights and remedies under the Agreement, Client acknowledges that Client Content and information regarding Client's account will be processed by Casted and stored and processed using online hosting services selected by Casted. Client represents and warrants that it has all necessary rights in, and obtained all necessary consents to, the Client Content to grant Casted the rights granted under this Section 6(d). Notwithstanding anything to the contrary in the Agreement, Client authorizes and agrees that Casted may collect Benchmark Data and such Benchmark Data shall be the property of Casted. Casted shall have the right to retain, use, distribute, sell, and otherwise exploit such Benchmark Data.
- Feedback. Casted encourages Client to provide suggestions, proposals, ideas, recommendations or other feedback regarding improvements to Casted’s services and related resources. Casted shall own all rights, title and interest, including all intellectual property rights, in and to any improvements to the Software Services or any new programs, upgrades, modifications or enhancements developed by Casted in connection with rendering the Software Services to Client, even when refinements and improvements result from Client’s feedback or request. To the extent, if any, that ownership in such refinements and improvements does not automatically vest in Casted by virtue of the Agreement or otherwise, Client grants to Casted a royalty-free, fully paid, sub-licensable, transferable, non-exclusive, irrevocable, perpetual, worldwide right and license to make, use, sell, offer for sale, import and otherwise exploit feedback (including by incorporation of such feedback into the Software Services) without restriction.
- Logo Usage. Client agrees to allow Casted to use their logo in a manner that is consistent with the Client’s Brand Guidelines.
Section 7. Warranties
Casted represents, warrants and covenants that: (a) it has the full corporate right, power and authority to enter into the Agreement; (b) the execution of the Agreement by and the performance of its obligations and duties hereunder do not and will not violate any agreement to which it is a Party or by which it is bound; (c) it shall use commercially reasonable efforts to prevent unauthorized access to, and maintain and assure the strict confidentiality of, all Client Content; (d) it shall provide the Professional Services in a good and workmanlike, professional manner. EXCEPT AS SPECIFICALLY SET FORTH IN THE AGREEMENT, CASTED DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
Section 8. Indemnification
Client shall indemnify and defend Casted, at Client’s own expense, against any suit or proceeding brought against Casted by a third party arising from or related to: (a) Client’s violation of any law; or (b) an allegation that the Client Content or Casted's use of the Client Content in accordance with the Agreement violates any law or regulation or infringes third party intellectual property rights or privacy rights. Casted shall indemnify and defend Client, at Casted’s own expense, against any claim, suit or proceeding brought against Client that, if true, would constitute a breach of Casted’s representation, warranty, or covenant provided in Section 7 (a “Claim”). To qualify for such defense and payment, Client must (a) give Casted prompt written notice of any such Claim; (b) allow Casted to solely control the defense and all related settlement negotiations for any such Claim; and (c) fully cooperate with Casted in such defense and settlement negotiations.
Section 9. Limitation of Liability
IN NO EVENT WILL EITHER PARTY BE LIABLE FOR: (I) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR (II) LOSS OF USE, DATA, BUSINESS, REVENUES OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), EVEN IF SUCH PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE FORESEEABLE. EACH PARTY’S MAXIMUM AGGREGATE LIABILITY RELATED TO OR IN CONNECTION WITH THE AGREEMENT WHETHER UNDER ANY THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, WILL NOT EXCEED THE AGGREGATE AMOUNT OF FEES PAID BY THE CLIENT UNDER THE AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING SUCH CLAIM.
Section 10. Confidentiality
- Non-Disclosure. Each Party agrees not to use, disclose, sell, license, publish, reproduce or otherwise make available the Confidential Information of the other Party to any third party, and further agrees not to use the Confidential Information of the other Party except and only to the extent necessary to perform their respective obligations under the Agreement. Each Party agrees to secure and protect the other Party’s Confidential Information in a manner consistent with the maintenance of such Party’s own confidential and proprietary rights in the information (and in any event reasonable measures) and to take appropriate action by instruction or agreement with its employees, consultants, affiliates or other agents who are permitted access to the other Party's Confidential Information to satisfy its obligations under this section.
- Exclusions. The obligation to treat information as Confidential Information shall not apply to information which: (a) is publicly available through no action of the receiving Party; (b) was rightfully in the receiving Party’s possession on a non-confidential l basis independent of its relationship with the disclosing Party prior to the first disclosure by the disclosing Party to the receiving Party as evidenced by the receiving Party’s then-existing written records; (c) has been or is developed by or become known to the receiving Party without access to any of the disclosing Party’s Confidential Information and outside the scope of any agreement with disclosing Party with the receiving Party having the burden of proof to demonstrate independent creation; (d) has been obtained rightfully from third Parties not bound by an obligation of confidentiality.
Section 11. Term and Termination
- Term. The initial term of the Agreement shall be as set forth on the Order Form (the “Initial Term”). Thereafter, the term of the Agreement shall renew as set forth on the Order Form (each, a “Renewal Term”), unless one Party provides written notice to the other Party at least ninety (90) days in advance of the end of the then-existing term that it does not wish to renew the Agreement.
- Termination for Cause. In the event that Client or Casted breaches any material provision of the Agreement and fails to cure such breach within fifteen (15) days after written notice thereof (which notice reasonably details the alleged breach),
the non-breaching Party may terminate the Agreement immediately by written notice to the other Party. In the event that Client or Casted (i) becomes insolvent; (ii) files a petition in bankruptcy for Chapter 7 relief, or has such a petition filed against it (and fails to lift any stay imposed thereby within sixty (60) days after such stay becomes effective); (iii) has a receiver appointed with respect to all or substantially all of its assets; (iv) makes an assignment for the benefit of creditors; or, (v) ceases to do business in the ordinary course, the other Party may terminate the Agreement immediately by notice in writing. All notices required by this Section shall be in accordance with the notice requirements.
- Rights upon Termination. Client acknowledges that in the event of a termination for any reason: (i) the rights granted by Casted to Client will cease immediately; (ii) Casted does not retain and shall not be responsible for any damage to or loss of Client Content or other data; (iii) Client shall pay Casted for all Software Services (including any Professional Services) provided to Client up to and including the date of termination; and (iv) Client shall not be entitled to any refund of the Fees.
Section 12. General
- Law, Jurisdiction, and Venue. The Agreement shall be governed and construed according to the laws of the State of Indiana. The Parties agree that the exclusive jurisdiction or any lawsuit related to or arising under the Agreement shall be in the Circuit Court for Marion County, Indiana or the United States District Court for the Southern District of Indiana, Indianapolis Division.
- Assignment. Except as otherwise provided in this Section 12(b), neither Party may assign any of its rights or delegate any of its duties under the Agreement without the prior written consent of the other Party, which consent will not be unreasonably withheld; any unauthorized assignment or delegation will be null and void. A Party may, without notice to or consent from the other Party, assign the Agreement in connection with any merger, consolidation, reorganization, sale of all or substantially all of its assets or any similar transaction, provided that the assignee confirms in writing that it has assumed all obligations of the assignor under the Agreement. The Agreement will be binding upon and inure to the benefit of the Parties' permitted successors and assignees.
- Notices. Any notice either Party desires to give the other Party hereunder shall be in writing. All notices shall be given by delivery to the Parties at their physical or email addresses set forth on the Order Form unless such addresses are changed by written notice.
- Independent Parties. The Agreement is by and between independent parties. Nothing in the Agreement shall be construed or interpreted to give rise to an agency, partnership, franchise, employment, or joint venture.
- Force Majeure. Neither Party shall be liable in damages or have the right to terminate the Agreement for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its control including, but not limited to, weather and other Acts of God, government restrictions, acts of terrorism, widespread Internet outage(s), wars, insurrections and/or any other cause beyond the control of the Party whose performance is affected, however, if the duration of the delay caused by such an event shall exceed fifteen (15) days, the Party who was to benefit from the performance of such act shall have the right to terminate the Agreement by giving written notice, according to the Agreement.
- General. The Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements with respect to such subject matter, whether express or implied, written or oral. The Agreement may be executed in counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same agreement. The Agreement may not be modified except by written agreement signed by duly authorized representatives of both Parties. The Agreement shall not be construed against any Party by reason of its preparation. If one or more of the provisions contained in the Agreement are found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not be affected. In this event, the Parties may replace the unenforceable provision with a mutually agreeable enforceable provision that preserves the original intent and position of the Parties. Any other provisions that survive by their nature shall survive the expiration or termination of the Agreement for any reason. No term or provision of the Agreement shall be deemed waived and no breach or default shall be deemed excused unless such waiver or consent shall be in writing and signed by the Party claimed to have waived or consented. No consent by any Party to, or waiver of, a breach or default by the other, whether express or implied, shall constitute a consent to, waiver of, or excuse for any different or subsequent breach or default.
Section 13. Third Parties