These Terms of Service together with each Purchase Order between Supercast Podcast Corp., a corporation formed in British Columbia (“Supercast”) and each ofits customers(each a “Buyer”) are referred to herein as the“Agreement”. Capitalized terms not defined herein shall have the meaning set forth in the subject Purchase Order. Supercast and Buyer may be referred to herein collectively as the “Parties” or individually as a “Party.” The Parties agree as follows:
“Authorized User” means an employee of Buyer who Buyer permits to access and use theSoftware and/or Documentation pursuant to these terms.
“Confidential Information” means information that, either, is identified as confidential upon disclosure, or that the recipient should understand to be confidential under the circumstances (including nonpublic information about each party’s users, and, in the case of Supercast, any nonpublic Documentation and information concerning the Software); provided, Confidential Information does not include information that: (i) at the time of disclosure is, or thereafter becomes, generally available to and known by the public other than as a result of, directly or indirectly, any act or omission by the recipient; (ii) at the time of disclosure is, or thereafter becomes, available to the recipient on a non-confidential basis from a third-party source, provided, such third party is not and was not prohibited from disclosing such Confidential Information to the recipient by any contractual obligation; (iii) was known by or in the possession of the recipient, as established by documentary evidence, prior to being disclosed by or on behalf of the discloser pursuant to this agreement; or (iv) was or is independently developed by the recipient, as established by documentary evidence, without reference to or use of, in whole or in part, any of the discloser’s Confidential Information.
“Documentation” means any user manuals or guides relating to the Software that Supercast provides to Buyer either electronically or in hard copy form.
“Downtime” means any period, greater than ten minutes, during which the Buyer is unable to access or use the Software because of an Error, excluding any such period that occurs during any Scheduled Downtime.
“Error” means the material failure of the Software to perform its primary functions, but not including any such failure caused by: (1) any modification of the Software made by anyone other than Supercast; (2) any third party hardware or software used by Buyer or any of its users except as otherwise provided in the then current Documentation; (3) the improper operation of the Software by Subscriber or its users; (4) the accidental or deliberate damage to, or intrusion or interference with the Software; (5) the use of the Software other than in accordance with any Documentation or the reasonable instructions of Supercast; ongoing test or training instances of the Software provided to Buyer; or (6) services, circumstances or events beyond the reasonable control of Supercast, including without limitation, any force majeure events, the performance and/or availability of local ISPs employed by Buyer, or any network beyond the demarcation or control of Supercast.
“Available Time” means the number of minutes in a calendar month minus the number of minutes of Scheduled Downtime that month.
“Scheduled Downtime” means the time period identified by Supercast in which it intends to perform any planned upgrades and/or maintenance on the Software or related systems and any overrun beyond the planned completion time.
“Software” means Supercast’s web application provided through the Services (and any Updates provided to Buyer pursuant to this Agreement).
“Uptime Percentage” means (1) the total number of minutes of Available Time in a month minus the number of minutes of Downtime suffered in such month, divided by (2) the total number of minutes of Available Time in such month. Uptime Percentage will be calculated by Supercast in its reasonable discretion using only records and tools available to Supercast.
“Third-Party Products” means any third-party products provided with or incorporated into the Software, including any open source software.
“Updates” means any updates, bug fixes, patches, or other error corrections to the Software that Supercast makes generally available free of charge to all Buyers of the Software.
Buyer is responsible and liable for all uses of the Software and Documentation resulting from access provided by Buyer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Buyer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Buyer will be deemed a breach of this Agreement by Buyer. Buyer shall take reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Software, and shall cause Authorized Users to comply with such provisions.
Fees. Unless otherwise agreed in writing by Supercast: (i) Buyer shall pay the fees as detailed in the Purchase Order, without offset or deduction; and (ii) Buyer shall make all payments hereunder on or before the agreed date(s).
Late Payment. If Buyer fails to make any payment when due or a card is declined, in addition to all other remedies that may be available, Supercast may prohibit access to the Software until all past due amounts have been paid, without incurring any obligation or liability to Buyer or any other person by reason of such prohibition of access.
Taxes. All fees and other amounts payable by Buyer under this Agreement are exclusive of taxes and similar assessments. Buyer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Buyer hereunder, other than any taxes imposed on Supercast’s income.
Ownership. Buyer acknowledges that, as between Buyer and Supercast, Supercast owns all right, title, and interest, including all intellectual property rights, in and to the Software and Documentation and, with respect to Third-Party Products, the applicable third-party owns all right, title and interest, including all intellectual property rights, in and to the Third-Party Products.
Feedback. If Buyer or any of its employees or contractors sends or transmits any communications or materials to Supercast by mail, email, telephone, or otherwise, suggesting or recommending changes to the Software or Documentation, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Supercast is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Buyer hereby assigns to Supercast on Buyer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Supercast is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Supercast is not required to use any Feedback.
Each party agrees to hold the other party’s Confidential Information in confidence and not to use or disclose it except in connection with performance of this Agreement.
The Software and Documentation are provided “AS IS” and without warranty. Supercast disclaims all warranties, express or implied, including any warranties of fitness for a particular purpose, merchantability, and non-infringement.
Buyer shall indemnify, hold harmless, and, at Supercast’s option, defend Supercast from and against any Losses resulting from any Third-Party Claim based on Buyer’s, or any Authorized User’s: (i) negligence or willful misconduct; or (ii) use of the Software or Documentation in a manner not authorized or contemplated by this Agreement; (iii) use of the Software in combination with data, software, hardware, equipment or technology not provided by Supercast or authorized by Supercast in writing; (iv) modifications to the Software not made by Supercast; or (v) use of any version other than the most current version of the Software or Documentation delivered to Buyer, provided that Buyer may not settle any Third-Party Claim against Supercast unless such settlement completely and forever releases Supercast from all liability with respect to such Third-Party Claim or unless Supercast consents to such settlement, and further provided that Supercast will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
Supercast’s maximum liability in any action relating to the subject of this Agreement is limited to the Fees paid by Buyer in the twelve months preceding the action. Neither Party is liable for any claim for lost profits or similar damages, even if foreseeable and regardless of the form of action. These limitations are subject to applicable law.
Term. The term of this Agreement begins on the effective date of a Purchase Order executed by both parties and continues until one party provides written notice of non-renewal to the other at least 30 days prior to expiration of the current term. This Agreement may be terminated pursuant to this Section 9.
Termination. In addition to any other express termination right set forth in this Agreement:
Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Buyer shall cease using the Software and Documentation. No expiration or termination will affect Buyer’s obligation to pay all fees that may have become due before such expiration or termination. If Supercast terminates this Agreement for its convenience, it will issue a prorated refund for any prepaid period. No refunds will be issued in any other circumstance.
Survival. This Section 9 and Sections 1, 5, 6, 7, 8 and 10 survive any termination or expiration of this Agreement. No other provisions of survive.
Rules; Suspension. If any user violates any terms or rules applicable to use of the Software, Supercast may suspend access to such users. Additionally, if Buyer violates any such terms or rules (provided they are published or otherwise made available to Buyer), the same shall constitute a breach of this Agreement.
Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.
Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing. All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile, or email (with confirmation of transmission). Notices are effective upon receipt by the receiving Party. Notices to Buyer will be sent to the address or email address on file with Supercast. Notices to Supercast should be sent to 524 Yates St, Victoria, BC V8W 1K8 or firstname.lastname@example.org.
Amendment. Supercast may prospectively amend this Agreement on 30-days written notice to Buyer. Unless Buyer (i) notifies Supercast prior to expiration of such 30-day period that Buyer does not accept such amendment and (ii) ceases use of the Software and Documentation, then Buyer shall be bound to the amended Agreement.
Waiver. No waiver of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the laws of British Columbia without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of British Columbia. Any legal suit, action, or proceeding arising out of or related to this Agreement will be instituted exclusively in the courts of British Columbia, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
Assignment. Buyer may not assign or transfer any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Supercast, which consent shall not be unreasonably withheld, conditioned, or delayed. Any purported assignment, transfer, or delegation in violation of this Section is null and void. No assignment, transfer, or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective permitted successors and assigns.
Consent to the Use of Data. Buyer consents to Supercast’s use of information provided by Buyer in connection with Buyer’s use of the Software and any support or consulting services rendered by Supercast. Supercast may use this information to improve the Software and its other products and services, but will not disclose this information in a form that identifies Buyer.
Execution; Counterparts. Upon Buyer’s electronic acceptance of this Agreement, both Buyer and Supercast shall be deemed to have executed it and agreed to its terms.
Supercast demonstrates its work in case studies. Supercast may use data from its work for Buyer in such case studies. Data will be anonymized when appropriate to protect confidential information. Case studies may communicate the economic value of Supercast’s work. Buyer agrees to Supercast using its work in this way and to providing Supercast with economic data. Buyer also agrees to provide Supercast with feedback and testimonials about Supercast’s work for Buyer. Buyer grants Supercast permission to publish Buyer’s testimonials on our website or in other promotional material. Further, Supercast may (a) publicize the fact that Buyer is Supercast’s customer; (b) describe the nature of Supercast’s work for Buyer; and (c) subject to any reasonable restrictions imposed by Buyer, utilize Buyer’s trade name(s) and trademark(s) in connection with this publicity. This use is permitted without additional compensation to Buyer.