Terms of Service
These Terms of Service govern all use of the Vidcaster website vidcaster.com (“Vidcaster Website”), Vidcaster’s (including its licensors’, suppliers’ and partners’) technology, all Contracts, and all Services which are provisioned, provided, and/or performed by Vidcaster, Inc. (“Vidcaster”) and/or its licensors, suppliers, partners and/or resellers, including but not limited to that in connection with Vidcaster, the related Player, and/or other technologies provided by or through Vidcaster and/or its licensors, suppliers, partners and/or resellers. By having access to, receiving, and/or using the Services, You agree, without limitation or qualification, to be bound by and to comply with these Terms of Service and any other posted guidelines or rules required by Vidcaster that are applicable to any other website where the Services are found.
VIDCASTER RESERVES THE RIGHT, AT ITS SOLE DISCRETION, TO ALTER OR UPDATE THESE TERMS OF SERVICE AND/OR THE SERVICES AT ANY TIME WITH OR WITHOUT NOTICE INCLUDING, WITHOUT LIMITATION, FEATURES, SPECIFICATIONS, CAPABILITIES, FUNCTIONS, LICENSING TERMS, RELEASE DATES, GENERAL AVAILABILITY OR OTHER CHARACTERISTICS. BY CONTINUING TO USE THE SERVICES AFTER ANY SUCH CHANGES, YOU AGREE TO BE BOUND BY SUBSEQUENT CHANGES AND ACKNOWLEDGE THAT VIDCASTER SHALL HAVE NO LIABILITY TO YOU AS A RESULT OF ANY SUCH CHANGES.
1.1 “Account” means a Vidcaster user profile created by You or for You and used to make selections with respect to the presentation, management, distribution and/or end user access to Content.
1.2 “Vidcaster” means Vidcaster’s integrated content delivery and website-creation solution.
1.3 “Content” means any and all audio and video materials including, without limitation, text, images, logos, artwork, graphics, pictures, advertisements, sound and any intellectual property contained in any such materials uploaded or otherwise provided by, or viewed by, You and/or Your agents and/or Your users in connection with the Services.
1.4 “Contract” means an “Vidcaster Services Agreement,” “Services Agreement and Order Form,” supplemental order form, and/or similar document(s) provided by Vidcaster and/or its resellers which You have signed and/or an online agreement to which You have agreed by way of clicking to accept and/or a statement of work and/or other written agreement between You and Vidcaster or its resellers or other authorized agents.
1.5 “Demo Account” means a temporary account provided to You by Vidcaster or its Resellers that permits a potential customer to use the Services on a trial basis for a limited time period.
1.6 “Vidcaster Fees” means all fees relating to any or all of the Services including, without limitation, all fees set forth in a Contract.
1.7 “Player” means Vidcaster’s cross-platform video player.
1.8 “Services” means any and all of the following products and/or services that are provided and/or made available to You by or through Vidcaster and/or its authorized resellers, partners, licensors and/or suppliers: (i) Vidcaster and the Player, and (ii) any other products or services provided to You by or through Vidcaster and/or its authorized resellers, partners, licensors, and/or suppliers pursuant to a Contract such as (but not limited to) technical support, engineering work, and/or any other professional services.
1.9 “Term” and “Initial Term” have the meanings set forth in Section 4 of these Terms of Service.
1.10 “You” and “Your” means the individual, corporation or other entity which (i) has entered into a Contract, (ii) has received a demonstration account through Vidcaster or one of its resellers, and/or (iii) otherwise uses the Services. Nothing herein permits You to use the Services without first obtaining the necessary rights and consents described herein and in any Contract.
2. Grant of Licenses; Scope of License; Restrictions.
2.1 Grant of Licenses.
(a) Right to Use the Services. Provided You comply at all times with all terms and conditions of Your Contract(s), these Terms of Service, and the AUP, Vidcaster grants to You, during the Term specified in the Contract(s) or the limited time period specified for the Demo Account issued to You, a non-exclusive, non-transferable, revocable, limited license, without right of sublicense, to use the Services.
(b) Content. You hereby grant Vidcaster a worldwide, royalty-free, non-exclusive, transferable, license to perform such acts with respect to the Content solely as are reasonable or necessary to provide the Services including, without limitation, the right to: (i) deliver Content in accordance with the preferences You set using Your Account and any authorized subaccounts; (ii) secure, encode, reproduce, host, cache, route, reformat, analyze and create algorithms and reports based on access to and use of the Content; (iii) use, exhibit, broadcast, publish, publicly display, publicly perform, distribute, promote, copy, store, and/or reproduce (in any form) the Content on or through the Services; and (iv) utilize Content to test Vidcaster’s internal technologies and processes.
2.2 Scope of Use.
(a) Responsibility for Content. You are solely responsible for all matters arising out of or in connection with the Content including, without limitation, ensuring that the Content does not include Prohibited Content (as defined in the AUP) and does not violate any third party rights, as further described therein and elsewhere in these Terms of Service.
(b) Content. Vidcaster and the Services are passive conduits of the Content and Vidcaster has no obligation to undertake to edit, review, monitor or oversee Content submitted, uploaded, distributed, retrieved, or viewed in connection with use of the Services, and assumes no responsibility or liability relating thereto. You acknowledge and agree that by using the Services, You may be exposed to Content that is offensive, indecent or objectionable. You further acknowledge and agree that the Services and the Content provided by third parties may contain errors or omissions. You acknowledge and agree that Vidcaster does not screen or review published Content on the Services to determine whether it contains false or defamatory material, or material which is offensive, indecent, objectionable, or which contains errors or omissions. Under no circumstances will Vidcaster be liable in any way for any user or other third party Content, including, but not limited to, for any defamation, infringement, falsehoods, errors or omissions in any such Content, or for any loss or damage of any kind incurred as a result of the use or publication of any such content posted, delivered, emailed or otherwise transmitted via the Services. Vidcaster does not guarantee that any Content will be to Your satisfaction. You acknowledge Vidcaster is not responsible for preventing or identifying infringement of intellectual property rights or other violations associations with the Content, and Vidcaster assumes no responsibility for screening or monitoring for possible (i) infringement or enforcing Your rights or third party rights with respect to Content, (ii) unlawful, inappropriate or unpermitted use, (iii) libel, falsehoods, errors or omissions contained in Content, or (iv) noncompliance with FCC or other governmental laws and/or regulations. For any infringement or suspected infringement of intellectual property rights, notify Vidcaster in accordance with Vidcaster’s DMCA Notification Procedures available at vidcaster.com/dmca.
(c) Third Party Materials/Products/Services. Any third party products, Content, services or links displayed on or through the Services are not referrals or endorsements of any product, service or provider; any and all such offerings are displayed solely for convenience only. The Services may in some cases be permitted for use with third party components or services that may be subject to their own, separate license agreements or special pass-through terms, and You assume all risks and liabilities associated with the use of any such third party offerings. For clarity, nothing in this Section 2.2(c) diminishes Vidcaster’s obligations to You under these Terms of Service with respect to Vidcaster’s (or its licensors’ or suppliers’) technology within the Services (the “Vidcaster IP”), but instead relates to any access and/or use of third party products and/or services that You elect to utilize in connection with the Vidcaster IP (regardless of whether Vidcaster provides integration services at Your request in connection with third party products and/or services). If You utilize YouTube in connection with the Services, YouTube wants You to know that it is not charging You to view its content, and as such the Vidcaster Fees never include charges for the YouTube content itself.
(e) Content Preservation and Disclosure. You expressly acknowledge and agree that Vidcaster may preserve Content and may also disclose Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (i) comply with legal process; (ii) enforce a Contract or these Terms of Service; (iii) respond to claims that any Content violates the rights of third-parties; or (iv) protect the rights, property, or personal safety of Vidcaster, its licensors, suppliers, partners, resellers, or users and/or the public. You acknowledge and agree that the technical processing and transmission of the Services, including the Content, may involve (i) transmissions over various networks; and/or (ii) changes to conform and adapt to technical requirements of connecting networks or devices.
(f) Demonstration Accounts. At Vidcaster’s discretion, You may receive a Demo Account which may include limited access to test certain features and functionality of the Services free of charge. Vidcaster is permitted to suspend or terminate the Demo Account at any time with or without notice. At the end of any demonstration period as determined by Vidcaster, You are responsible for paying applicable fees for use of the Services pursuant to the payment terms and prices designated in a separate agreement between You and Vidcaster (or one of its resellers) or, if no such agreement has been executed, then pursuant to the Vidcaster’s then-current standard pricing schedule, which may (but is not required to) be available on the Vidcaster Website or Your Account interface.
In consideration of Your rights in and to the Services, You shall timely pay Vidcaster in U.S. dollars the Vidcaster Fees designated in your Contract(s). You are solely responsible for all applicable sales, use, import or export taxes, duties, fees, value-added taxes, surcharges, tariffs or other amounts attributable to the exploitation of the Content under the Contract(s). Vidcaster Fees not paid when due shall be subject to a late fee equal to the lesser of one and one half percent (1.5%) of the unpaid balance per month or the highest monthly rate permitted by applicable law. Vidcaster may, with or without notice, suspend or terminate access to the Services if You are more than thirty (30) days delinquent in paying any portion of the Vidcaster Fees. In the event that a Contract is terminated prior to the end of the Term for any reason other than an uncured material breach by Vidcaster, all committed fees for the Term shall become immediately due and owing in full. After the Initial Term of a Contract or renewal thereof (as applicable), the Vidcaster Fees shall be subject to Vidcaster’s standard pricing changes.
4. Term and Termination.
The term of a Demo Account shall be as determined by Vidcaster in its sole discretion. The term of all Contracts shall be the initial committed term (the “Initial Term”) and all renewals (collectively referred to herein as the “Term”). Either party can terminate the Contract effective as of the end of the then-current term by notifying the other party in writing or email at least thirty (30) days prior to the end of then-current term. Upon the termination of a Contract any reason, You shall immediately discontinue all use of the Services and Vidcaster is not obligated to provide you with any Services. You may suspend or terminate a Contract if Vidcaster materially breaches a term or condition of the Contract and such breach has not been cured within thirty (30) days of written notice by providing Vidcaster with written notice of such suspension or termination, provided however that all Vidcaster Fees that were incurred prior to the date of termination shall be immediately due and payable upon termination. Vidcaster may in its sole discretion terminate or suspend the Contract and/or Your access to the Services: (a) should You fail to comply with a term or condition of Your Contract, these Terms of Service and/or the AUP; (b) based on any conduct that Vidcaster believes is or may be directly or indirectly harmful to other users, to Vidcaster or its suppliers (including their respective systems and/or the Services); (c) based on any conduct that Vidcaster reasonably believes may be a violation of law, third party rights, and/or Vidcaster’s Prohibited Activities or restrictions on Prohibited Content (each as described in the AUP), or repeated breaches thereof; and/or (d) in the event of any legal restriction imposed on You, Vidcaster, and/or its suppliers with respect to provision of the Services. Vidcaster’s right to suspend or terminate Services as set forth in this Section shall not absolve You of any payment or indemnification obligations described herein or diminish any other remedy available to Vidcaster or its partners/suppliers/resellers. All terms and conditions set forth herein that should by their nature survive termination (including without limitation all provisions relating to payment, intellectual property, ownership, and indemnification) in order to be given full effect shall continue in full force and effect after any expiration or termination of the Contract(s).
5. Title and Ownership.
Vidcaster and its suppliers and licensors own all right, title and interest in and to the Services including associated intellectual property rights under copyright, trade secret, patent, trademark and/or other applicable domestic and international laws. As between You and Vidcaster, any and all trademarks that Vidcaster uses in connection with the Services are owned by Vidcaster and any goodwill associated with the use of such marks shall inure to the benefit of Vidcaster. In no event shall the Services be deemed sold or assigned to You. Any and all rights not expressly granted by Vidcaster are reserved to Vidcaster and its suppliers and licensors. Vidcaster is not required to accept unsolicited feedback. If You provide any feedback about the Services to Vidcaster, Vidcaster shall own all rights in and to such feedback and any derivative technologies and compilations based on or developed through or by using such feedback. You shall take all necessary actions to affect Vidcaster’s rights in and to such feedback.
You represent and warrant that You are solely responsible and liable for: (i) obtaining all necessary consents, permissions, licenses and waivers from copyright owners, artist(s), actors, directors, performers, writers, producers, or any other individuals who appear in the Content or the results and proceeds of whose services are utilized in the Content; (ii) obtaining any required synchronization and master use licenses from the owners of the musical compositions and sound recordings embodied in the Content (or their designated representatives); (iii) any payments to any labor unions and guilds, to the extent required under applicable collective bargaining agreements or otherwise (e.g., residuals, re-use, rerun and other similar fees); (iv) obtaining public performance licenses from public performance rights collection organizations (e.g., ASCAP, BMI or SESAC); (v) complying with all laws, rules and applicable regulations; (vi) any Prohibited Content; and (vii) abiding by all the terms of these Terms of Service.
7. Disclaimer of Warranties.
VIDCASTER MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE OF THE SUITABILITY FOR YOUR PURPOSES OF THE SERVICES OR CONTENT YOU MAY RETRIEVE BY OR THROUGH THE SERVICES, THAT THE USE OF THE SERVICES SHALL BE SECURE, UNINTERRUPTED OR ERROR-FREE, OR THAT THE SERVICES SHALL FUNCTION PROPERLY IN COMBINATION WITH ANY THIRD PARTY TECHNOLOGY, HARDWARE, SOFTWARE, SYSTEMS OR DATA. THE SERVICES AND ANY CONTENT RETRIEVED BY OR THROUGH THE SERVICES ARE PROVIDED “AS IS” AND ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE SERVICES MAY BE SUBJECT TO INTERRUPTION, LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF INTERNET APPLICATIONS AND ELECTRONIC COMMUNICATIONS AND VIDCASTER IS NOT RESPONSIBLE FOR ANY SUCH DELAYS, MISDELIVERY, UNTIMELY DELIVERY, DELIVERY FAILURES, OR ANY OTHER DAMAGE RESULTING FROM EVENTS BEYOND VIDCASTER’S REASONABLE CONTROL. YOU UNDERSTAND AND AGREE THAT ANY CONTENT OR OTHER MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS IN THE DOWNLOAD OF SUCH CONTENT OR OTHER MATERIAL.
Some jurisdictions do not allow the disclaimer of implied warranties. In such jurisdictions, the foregoing disclaimers may not apply to You insofar as they relate to implied warranties.
You shall defend, indemnify and hold harmless Vidcaster and its suppliers, licensors, partners, and resellers and their respective officers, employees, licensors, agents, and affiliates, and all successors in interest to the foregoing, from and against any and all third party claims, damages, costs and expenses (including reasonable attorneys’ fees and litigation expenses) relating to, arising out of, or in connection with the Content and/or Your use (which includes use by Your employees, agents, customers, and users) of the Services, including but not limited to claims relating to, arising out of, or in connection with Prohibited Activities or Prohibited Content or Your breach of any of these Terms of Service, the AUP, and/or Your Contract(s), including but not limited to any of the representations or warranties set forth in any of the foregoing.
9. Limitation of Liability.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT UNDER NO CIRCUMSTANCES SHALL VIDCASTER OR ITS SUPPLIERS, RESELLERS, PARTNERS, OR LICENSORS OR ANY OF THEIR SUCCESSORS IN INTEREST (COLLECTIVELY HEREIN, “VIDCASTER”) BE LIABLE TO YOU OR ANY USER BASED ON YOUR OR THAT USER’S USE OR MISUSE OF AND/OR RELIANCE ON THE SERVICES OR THE CONTENT YOU RETRIEVE BY OR THROUGH THE SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL VIDCASTER BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THESE TERMS OF SERVICE OR THE USE OF OR INABILITY TO USE THE SERVICES OR RETRIEVE THE CONTENT BY OR THROUGH THE SERVICES, EVEN IF VIDCASTER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR EXCLUSIVE REMEDY AND VIDCASTER’S TOTAL AGGREGATE LIABILITY RELATING TO, ARISING OUT OF, IN CONNECTION WITH, OR INCIDENTAL TO THE SERVICES, THE CONTRACT(S) AND/OR THESE TERMS OF SERVICE FOR ANY REASON SHALL BE LIMITED TO THE ACTUAL DIRECT DAMAGES INCURRED BY YOU UP TO THE GREATER OF THE VIDCASTER FEES FOR USE OF THE SERVICES THAT YOU PAID DIRECTLY TO VIDCASTER IN THE TWELVE MONTH PERIOD PRECEDING THE CLAIM OR ONE THOUSAND U.S. DOLLARS ($1,000.00). BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU. SUCH LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF OTHER SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE SERVICES OR RECEIVED THROUGH ANY LINKS PROVIDED IN THE SERVICES, AS WELL AS BY REASON OF ANY INFORMATION OR ADVICE RECEIVED THROUGH OR ADVERTISED ON THE SERVICES OR RECEIVED THROUGH ANY LINKS PROVIDED IN OR THROUGH THE SERVICES. SUCH LIMITATION SHALL APPLY, WITHOUT LIMITATION, TO THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, OR LOST DATA.
In some jurisdictions, limitations of liability are not permitted. In such jurisdictions, the foregoing limitation may not apply to You.
10. Compliance With Laws; Government Restricted Rights.
The Services are of U.S. origin. You shall adhere to all applicable state, federal, local and international laws and treaties in all jurisdictions in which You use the Services, including, without limitation, all end-user, end-use and destination restrictions issued by U.S. and other governments and the U.S. Export Administration Act and its associated regulations. If the Services are licensed for use by the United States or in the performance of a U.S. government prime contract or subcontract, You agree that the Services are delivered as: (a) “commercial computer software” as defined in DFARS 252.227-7013, Rights in Technical Data”âNoncommercial Items (Oct 1988), DFARS 252.227-7014 Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation (Jun 1995), and DFARS 252.211-7015 Technical Data Commercial Items (May 1991); (b) as a “commercial item” as defined in FAR 2.101; or (c) as “restricted computer software” as defined in FAR 52.227-19, Commercial Computer Software”âRestricted Rights (Jun 1987); whichever is applicable. The use, duplication, and disclosure of the Services by the Department of Defense shall be subject to the accompanying license agreement provided in DFARS 227.7202 (Oct 1998). All other use, duplication or disclosure of the Services by the U.S. government will be subject to the accompanying license agreement and restrictions set forth in FAR 52.227-19, Commercial Computer Software”âRestricted Rights (Jun 1987), or FAR 52.227-14, Rights in Data”âGeneral Alternative III (Jun 1987). Contractor/licensor is Vidcaster, Inc., 1436 Howard St, San Francisco, California 94103.
11. Publicity and Marketing.
Neither You nor Vidcaster will issue any press releases or make public statements relating to any purchase order, order form, or similar contract between You and Vidcaster nor the relationship between You and Vidcaster without the other party’s prior written approval, which shall not be unreasonably withheld. However, Vidcaster shall be permitted to line-list You as a customer and use Your standard logo for Vidcaster’s promotional and marketing use until your use of the Services expires or otherwise terminates.
12. Governing Law; Dispute Resolution.
You understand and agree that the Contract(s) and these Terms of Service shall be governed by the laws of the State of California as such laws apply to contracts between California residents performed entirely within California, without regard to conflict of law provisions. Any action or proceeding arising from or relating to these Terms of Service may only be brought in the State and Federal courts located in Santa Clara, California and each party irrevocably submits to such exclusive jurisdiction and venue.
In the event of any conflict between or among any Contract(s) executed by both You and Vidcaster and these Terms of Service, the Contract shall control to the extent of such conflict and all other terms and conditions of each shall continue to remain in full force and effect.
14. General Provisions.