ZipCast Terms of Service
These terms will govern all Services provided to Customer by ZipCast, Inc. ( “ZipCast”).
One or more separate Statements of Work (SOW) will specify the Services to be
provided by ZipCast and Customer’s payment obligations for such Services.
1. Definitions
1.1. “Services” means the limited professional services work performed by ZipCast for
Customer pursuant to a Statement of Work agreed to by the parties in writing, under
these terms. The schedule for Services will be agreed upon by the parties.
1.2. “Statement of Work” means ZipCast’s standard form for ordering Services which
specifies the Services and applicable fees. Each Statement of Work will be governed by
the terms of these terms and will reference these terms.
2. Charges, Payment, and Taxes
2.1. Fees for Services. Unless otherwise expressly specified in the applicable Statement
of Work: (i) Services will be provided on a fixed-fee basis; that is, Customer will pay
ZipCast for all Services, plus any materials, taxes, and expenses agreed by parties; and
(ii) the rates for Services will be ZipCast’s standard rates in effect for the country in
which such Services are provided when such Services are provided. Any monetary limit
stated in the applicable Statement of Work for Services will be set for a Service period
for Customer’s budgeting and ZipCast’s resource scheduling purposes.
2.2. Invoicing, Payment and Taxes. ZipCast will invoice Customer as specified in the
applicable Statement of Work. If ZipCast is required to pay or collect any local, value
added, goods and services taxes or any other similar taxes or duties arising out of or
related to a Statement of Work (not including taxes based on ZipCast’s income), then
such taxes and/or duties shall be billed to and paid by Customer.
2.3. Measurement Tools and Access. Key performance indicators defined within the
Statement of Work will be measured by 3rd party tools and from internal metrics.
Customer shall provide access to ZipCast to information required for completion of
Services during the time agreed in the Statement of Work to perform Services.
2.4. Late Payments. Payments by Customer on undisputed charges that are past due
will be subject to interest at the rate of one and one-half percent (1.5%) per month on
that overdue balance. Customer will be responsible for any costs resulting from
collection by ZipCast of any such overdue balance, including, without limitation,
reasonable attorneys’ fees and court costs.
3. Term and Termination
3.1. Term. These terms will commence on the Effective Date in the Statement of Work
and will remain in effect until terminated in accordance with this Section 3.
3.2. Termination for Breach. A party may terminate any Statement of Work, if the other
party is in material breach of these terms or Statement of Work and has not cured the
breach within thirty (30) days of written notice, setting forth in reasonable detail the
nature of the breach. Consent to extend the cure period for breaches other than
nonpayment of fees will not be unreasonably withheld, so long as the breaching party
has commenced cure during the thirty (30) day notice period and pursues cure of the
breach in good faith.
3.3. Effect of Termination. Termination of any Statement of Work will not limit either party
from pursuing any other remedies available to it, including injunctive relief, nor will
termination relieve Customer of its obligation to pay all charges that accrued prior to
such termination. The parties’ rights and obligations under Sections 2, 3, 4, 6 and 8 of
the ZipCast Terms of Service will survive termination of any Statement of Work.
4. Indemnities
4.1. Subject to Section 6 (Limitation of Liability), each party (“Provider”) will indemnify,
defend, and hold harmless the other party (“Recipient”) against any damages claimed
by a third party that any information, design, specification, instruction, software, data, or
material furnished by the Provider (“Material”) and used by the Recipient hereunder
infringes a U.S. patent or copyright or misappropriates any trade secret and pay all
costs, damages and expenses finally awarded against the Recipient by a court of
competent jurisdiction or agreed to in a written settlement signed by the Provider,
provided that: (a) the Recipient notifies the Provider in writing within fifteen (15) days of
the claim; (b) the Provider has sole control of the defense and all related settlement
negotiations; and (c) the Recipient provides the Provider with the assistance,
information, and authority reasonably necessary to perform the above.
4.2. The Provider will have no liability for any claim of infringement resulting from: (a)
the Recipient’s use of a superseded release of some or all of the Material, if
infringement would have been avoided by the use of a subsequent release of the
Material which the Provider provides to the Recipient; (b) any information, design,
specification, instruction, software, data, or material not furnished by the Provider; (c)
modifications to the Material not made by the Provider; (d) any combination of the
Material with material not provided by the Provider, which combination is the basis for
such claim; or (e) any Material which is infringing as a result of being based on designs,
specifications, or instructions provided by the Recipient.
4.3. In the event that some or all of the Material is held or is believed by the Provider to
infringe, the Provider will have the option, at its expense: (a) to modify the Material to be
non-infringing or replace it with non-infringing material; or (b) to obtain for the Recipient
a license to continue using the Material. If it is not commercially feasible to perform
either of the above options, then the Provider may require from the Recipient return of
the infringing Material and all rights thereto. This Section 4.1 states the parties’ entire
liability and exclusive remedy for third party allegations of intellectual property
infringement.
5. Warranty and Disclaimers
5.1. ZipCast warrants that the Services will be performed consistent with generally
accepted industry practices. Customer must report any deficiencies in the Services to
ZipCast in writing within thirty (30) days of completion of the Services in order to receive
warranty remedies.
5.2. The warranty herein is exclusive and in lieu of all other warranties, whether express
or implied, including the implied warranties of merchantability and fitness for a particular
purpose.
5.3. Remedies. For any breach of the above warranty, Customer’s exclusive remedy,
and ZipCast’s entire liability, will be the re-performance of the Services and if ZipCast
fails to re-perform the Services as warranted. Each sole and exclusive remedy shall be
to recover the fees paid to ZipCast for the deficient Services.
6. Nondisclosure
The parties may provide to one another information that is confidential (“Confidential
Information”). Confidential Information will be limited to information clearly identified as
confidential. Confidential Information will not include information which: (a) is or
becomes a part of the public domain through no act or omission of the receiving party;
(b) was in the receiving party’s lawful possession prior to the disclosure and had not
been obtained by the receiving party either directly or indirectly from the disclosing
party; (c) is lawfully disclosed to the receiving party by a third party without restriction on
disclosure; (d) is independently developed by the receiving party without use of or
reference to the disclosing party’s Confidential Information; or (e) is disclosed by
operation of law, provided that the disclosing party receive notice of such disclosure and
opportunity to oppose or limit it. The parties agree to hold each other’s Confidential
Information in confidence during the term and after and the termination of these terms.
7. License Grants
7.1. The Services provided under these terms may be in support of Customer’s license
to use computer software programs and content owned or provided by ZipCast and
ZipCast content providers under a separate Software License Agreement (“License
Agreement”). The License Agreement will govern all use by Customer of such
programs. Neither these terms nor any Statement of Work includes the grant of any
license or any other rights for such programs.
7.2. Any Services acquired from ZipCast will be provided separately from such program
licenses, and Customer may acquire either Services or such program licenses without
acquiring the other.
7.3. ZipCast grants Customer a perpetual, non-exclusive, royalty-free license to use
segments created for Customer under these terms. All copyrights, patent rights, and
other intellectual property rights in Customer segments assembled or combined with
other content provided by ZipCast are retained by ZipCast. The foregoing license does
not extend any subscription term or provide any 3 rd party distribution right under a
License Agreement.
8. Limitation of Liability
8.1. In no event will either party be liable for any indirect, incidental, special or
consequential damages, or damages for loss of profits, revenue, data or use, incurred
by either party or any third party, whether in an action in contract or tort, even if the
other party or any other person has been advised of the possibility of such damages.
8.2. ZipCast’s aggregate cumulative liability for damages for Services performed will in
no event exceed the amount of fees paid by Customer under the applicable Statement
of Work.
8.3. The provisions of these terms allocate the risks under these terms between ZipCast
and Customer. ZipCast’s pricing reflects this allocation of risk and the limitation of
liability specified herein.
9. Additional Legal Considerations
9.1. Relationship of the Parties. ZipCast is an independent contractor; nothing in these
terms will be construed to create a partnership, joint venture, or agency relationship
between the parties. Each party will be solely responsible for payment of all
compensation owed to its employees, as well as employment related taxes. Each party
will maintain appropriate worker’s compensation insurance for its employees as well as
general liability insurance.
9.2. Governing Law. These terms, and all matters arising out of or relating to these
terms, will be governed by the laws of the State of Idaho, United States of America.
9.3. Jurisdiction. Any legal action or proceeding relating to these terms will be instituted
in any state or federal court in the City of Eagle.
9.4. Severability. In the event any provision of these terms is held to be invalid or
unenforceable, the remaining provisions of these terms will remain in full force.
9.5. Waiver. The waiver by either party of any default or breach of these terms will not
constitute a waiver of any other or subsequent default or breach.
9.6. Force Majeure. Neither party shall be liable to the other under these terms for any
delay or lack of performance resulting from a Force Majeure event. “Force Majeure”
event means any act of God, war, fire, typhoon, flood, earthquake, natural disasters,
governmental action, labor disruptions, materials shortages, or any other event beyond
the reasonable control of the prevented party.
9.7. Assignment. Neither party may assign or transfer its rights or obligations under
these terms and any assignment or transfer in derogation of the foregoing shall be null
and void, provided, however that either party shall have the right to assign these terms,
without the prior written consent of the other party, to the successor entity in the event of
merger, corporate reorganization, change of control or similar such transaction, or a
sale of all or substantially all of its assets. These terms shall be binding upon such
assignees.
9.8. Entire Terms. These terms and all Statements of Work between the parties
constitutes the complete agreement between the parties and supersedes all previous
and contemporaneous agreements, proposals, or representations, written or oral,
concerning the subject matter of these terms, except for any SaaS Agreement between
the parties. No Statement of Work may be modified or amended except in a writing
signed by a duly authorized representative of each party. It is expressly agreed that the
terms and conditions of these terms and any Statement of Work supersede the terms of
any Customer purchase order, ZipCast order acknowledgement or similar such
document.
Last Updated: July 9, 2024