TERMS AND CONDITIONS
1.1. Host- Castos, Inc;
1.2. Owner, User, You, Your- Client;
1.3. Fees- the Setup Fees, Recurring Fees and Non-Recurring Fees;
1.4. Initial Term- the period of time commencing upon the Service Commencement Date and ending one year later;
1.5 Non-Recurring Fees- any fees set forth on the Quote that are due when and if a particular Service is utilized, such as additional setup services, migration assistance, consulting services, additional system usage used by you during the term of this Agreement;
1.6 Recurrence Period- the period upon which you have agreed to pay for the Services as set forth in the Quote, typically [1 month]. For Example: May 5th to June 5th.;
1.7 Recurring Fees- the fees detailed on the Quote that are due to Castos on a recurring basis throughout the term of this Agreement upon each Recurrence Period.
1.8 Renewal Term- the subsequent renewal of the Initial Term or any Renewal Term, commencing upon expiration of such Initial Term or Renewal Term and ending upon expiration of the Service Contract period set forth on the Quote.
1.9 Service Commencement Date- that date upon which you are given access by Castos to begin using the Services.
1.10 Services- the professional services requested by you and provided by Castos as set forth on a Quote.
1.11 Setup Fees- the fees set forth on the Quote that are due upon the Service Commencement Date and represent the initial fees necessary to initially setup and configure the Services.
1.12 Support- the technical support provided by Castos in connection with the Services.
1.13 Quote- the agreement of Parties to provide a service or services to Client for a fee. This may take the form of a predefined ‘service plan’ offered by Castos, or any fee based service defined and agreed to by both parties.
2. Overview of Services
2.1 Castos shall provide to Client podcasting services as set forth in the attached statement of work and/or pricing Quote (the “Addendum”). Client hereby warrants and represents that it has reviewed the attached addendum and has agreed to the Description of Services, Assumptions and Understandings and Fees and Charges.
2.2 Castos and Client understand that additional Statements of Work may be prepared and entered into between the Parties. If subsequent Statements of Work are finalized between Castos and Client, the Parties agree this Master Services Agreement and its material terms will remain in force and effect.
3. Obligations of Castos
3.1 Castos utilizes various Infrastructure as a Service (“IaaS”) cloud computing vendors for some or all aspects of computing, digital storage, and network services used in the course of delivering the Castos service to Client. These Iaas vendors may include but are not limited to Amazon Web Services, Stackpath, Github, and/or other public cloud vendors selected by Castos. Parties agree that the use of IaaS vendors has inherent and implied risks of disruptions in availability, performance, uptime and other aspects of use including but not limited to potential data loss, security issues, and government agency monitoring or interference whether known or unknown. Accepted industry best practices in systems architecture design, information security, and business process have been employed by Castos as is commercially feasible to mitigate the possible effects these disruptions may have on our service and our clients use thereof. No guarantee, warranty, or assurance is offered or implied by Castos as it may relate to those events that are or may be reasonably determined outside of Castos’s influence or control.
3.2 Castos guarantees to Client the critical infrastructure systems of Castos will be available 100% of the time in a given month, excluding scheduled maintenance. In the event that critical infrastructure systems do not experience 100% availability in a given month (excluding scheduled maintenance), Castos will credit 20% of Client’s monthly fees for each 3 hours of downtime up to 100% (for all Service Credits in a given month) of your monthly fee for those Services affected. Critical infrastructure systems include all power and HVAC infrastructure, including UPSs, PDUs and cabling. Critical infrastructure systems do not include any software or services running on any server, nor do they include any server hardware.
4. Obligations of Client
4.1 Client acknowledges that it is solely responsible for all of its podcast content including any postings, data or transmissions initiated by the Client or by any other user.
4.2 Client agrees that it has read and will comply with the terms and conditions of the Castos Acceptable Use Policy as set fully in in Section 7 below.
4.3 Client agrees to cooperate with any investigation initiated by Castos into security issues or any suspected breach of the terms and conditions of this Agreement or the Acceptable Use Policy.
4.4 Client agrees to pay all invoices on or before the Due Date specified on each invoice.
5. Payment to Castos
5.1. Castos will invoice Client according to the terms set forth in the Statement of Work. Unless otherwise stated in the Statement of Work or Invoice, Client shall pay all invoices upon receipt. Unpaid invoices shall be considered in default after thirty (30) days of the due date shown on the invoice. Castos reserves the right to charge Client an additional 5% penalty for all invoices that are in default. Castos reserves the right to terminate this Agreement and cancel all services to Client for non-payment.
6. Confidentiality and Privacy Policies
6.1 The Parties acknowledge that during the course of the relationship contemplated herein that Castos and Client are likely to gain knowledge and access to information and materials that the Client or Castos deems to be confidential, proprietary or of strategic importance. Both Parties agree that they shall maintain the strictest confidentiality of all such materials that they receive concerning the other party hereto. The Parties shall not disclose such confidential information to any other third party, shall not use such confidential information for their own purposes, and they shall protect such confidential information from disclosure using the same or higher standards as they use to protect their own confidential information.
6.2. The Parties agree that confidential information shall be limited to disclosure, within the organization of the recipient, to those top management personnel and others with a bona fide need to know such information as a necessary part of their contribution to the performance under this Agreement.
6.3. For purposes of this Agreement, confidential information shall include any and all information that is of a proprietary, confidential or trade secret nature, of strategic importance, or is otherwise considered to be confidential or proprietary by either party. Confidential information will include (a) the unpublished prices and other terms of service, audit and security reports, data center designs and other proprietary technology and (b) all information transmitted to or from, stored on or otherwise processed by the servers or other devices used in the provision of the Services. Confidential Information does not include information: (i) in the public domain at the time of delivery, (ii) subsequently published or otherwise made part of the public domain through no fault of the Non-Disclosing Party or its representatives, (iii) in the Non-Disclosing Party’s possession at the time of disclosure and not acquired by the Non-Disclosing party directly or indirectly from Disclosing Party or its representatives on a confidential basis, (iv) which becomes available to the Non-Disclosing Party on a non-confidential basis from a source not under an obligation of confidentiality to the Disclosing Party, or (v) information that is independently developed without reference to the Confidential Information, as evidenced by written records maintained in the ordinary course of business and all other information deemed confidential by the parties. Confidential information shall not include items that are generally available to the public, generally known in the industry, exist in the public domain, is learned from an outside source independent from the relationship established by this Agreement or was known prior to the entering of this Agreement.
6.5 Castos reserves the right to use Client’s logo and name on the customer page on its public facing marketing page, and in sales and marketing materials.
7. Acceptable Use Policy
7.1. Client acknowledges that it has read and approved Castos’s Acceptable Use Policy as set forth at https://castos.com/terms-of-service. The Castos Acceptable Use Policy is designed to protect Castos and Client from irresponsible and/or illegal internet-based activities. The Castos Acceptable Use Policy is a non-exclusive list of the actions prohibited by Castos and Castos reserves the right to modify the Policy at any time. Any revisions to the Castos Acceptable Use Policy will only become effective after 15 days of written notice to Client of any revisions.
8. Term, Termination and Suspension of Services
8.1. This Agreement shall commence on the Effective Date and shall remain in effect until the termination of Castos’s services as set forth below.
8.2. This Agreement may be terminated by either party, without cause, by providing thirty (30) days written notice of termination to the other party.
8.3 In the event of a termination of services by Client as set forth above, Client will be responsible to pay Castos all outstanding fees and expenses incurred until the date of termination with the minimum of three (3) months of service fees set to be paid to Castos.
8.4 In the event of a termination of services by the Client for any reason within the first calendar month of the Effective Date, Castos agrees to refund Client all Fees as defined in section 1.1 of this Agreement, except any fees or costs that Castos has incurred in customized professional services provided to Client above and beyond Castos’s standard offering shall be paid by Client at an agreed upon hourly rate. Following the first calendar month of services, Client will commit with the expectation of three (3) months service fees to be paid prior to termination. Castos will commit to servicing and billing Client as outlined in the Statement of Work.
8.5 In the unlikely event that Castos may need to temporarily suspend services to Client, Client agrees that Castos may suspend providing the Services to Client, in whole or in part, for the following reasons: (i) Client has failed to pay the undisputed Fees due to Castos for a period of forty-five (45) days after the date of the invoice, (ii) Client is in violation of the Acceptable Use Policy and has failed to remedy violation within a commercially reasonable time, (iii) Client failed to reasonably cooperate with Castos’s investigation of any suspected breaches of this Agreement or Acceptable Use Policy; (iv) Castos reasonably believes that the servers hosting the Services have been accessed or manipulated by a third party without Client’s or Castos’s consent; (v) Castos reasonably believes that suspension of the Services is necessary to protect Castos and its other clients from a suspected breach of Client’s websites; or (vi) Castos is obligated to suspend Services via subpoena, court order or otherwise as required by Federal or State law.
8.6 In the unlikely event that Castos has suspended services to Client, Castos will give Client immediate notice and work with Client to resolve any issues.
9. Warranties and Representation/Limitation of Liability
9.1 Castos warrants and represents that it shall provide the podcasting services to Client as set forth in this agreement. Except for this warranty, Castos disclaims any and all other warranties, express or implied including without limitation the following: ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE.
CASTOS MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, AND SHALL HAVE NO LIABILITY WHATSOEVER, WITH RESPECT TO THE ACCURACY, DEPENDABILITY, PRIVACY, SECURITY, AUTHENTICITY OR COMPLETENESS OF ANY CONTENT IN ANY PODCAST, OR ANY ERROR OR EVENT CAUSED OR PERMITTED BY OR INTRODUCED THROUGH ANY PODCAST OR THE SERVERS WHICH ARE PROVIDED.
9.2 In no event shall Castos’s total cumulative liability arising out of or related to this agreement or the services provided in any Statement of Work from all causes of action of any kind, including but not limited to Contract, Tort (including Negligence), Strict Liability, Breach of Warranty, Misrepresentation or otherwise exceed the amount paid to Castos by Client for services in the six (6) months preceding the date on which the event giving rise to the claim occurred.
9.3 Castos will not be liable to Client for the costs of procurement, lost profits, lost sales, business expenditures, investments, business commitments, loss of any goodwill or any indirect, special, incidental, punitive or consequential damages arising out of or related to this agreement however caused on any theory of liability, whether or not Castos has been advised of the possibility of such damage.
9.4 The Parties agree that Castos has set its price and entered into this Agreement in reliance upon the disclaimers and limitations set forth herein, that the same reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose or cause consequential loss), and that the same form an essential basis of the bargain between the Parties.
10.1 Castos shall defend, indemnify and hold Client harmless from and against any and all costs, liabilities, judgments, actions, losses and expenses (including, but not limited to, reasonable attorneys’ fees and fees of experts) (collectively, “Losses”) arising out of any threatened or actual claim, suit, action, arbitration or proceeding (collectively, “Claims”) by any third party arising out of or relating to (i) breach of confidentiality, gross negligence or willful misconduct; (ii) a claim that the services provided by Castos, under this Agreement, infringe upon a United States patent or copyright or other intellectual property right of a third party. Client must provide Castos (a) prompt written notice of the claim; (b) you permit Castos sole control over the defense and settlement of the claim and (c) reasonably cooperate with Castos in the defense and or settlement of the claim.
10.2 Client shall defend, indemnify and hold Castos or any of its respective employees, agents or suppliers, harmless from and against any and all Losses arising out of or relating to (i) your gross negligence or willful misconduct or (ii) your use of the Services in violation of the Acceptable Use Policy or the Federal or State law; provided that (a) Castos gives Client prompt written notice of the claim, (b) Castos permits Client to have sole control over the defense and settlement of the claim and (c) Castos reasonably cooperates with Client in the defense and or settlement of the claim. Client’s indemnification obligations include claims arising out of acts or omissions by your employees or agents, users and any other person who gains access to Client’s data or websites as a result of Client’s failure to utilize reasonable security measures.
11. No Solicitation
11.1 Castos and Client each agree that, during the term of this Agreement, and for a period of one year thereafter, the Parties will not participate in, assist or encourage the solicitation or hiring by the other party or by another business entity of any person that is an employee or independent contractor of the Parties.
12.1. Any notification or written communication required by or contemplated under this Agreement shall be in writing and shall deemed to be delivered if transmitted via e-mail at the e-mail addresses listed below, except for any notice of termination of this Agreement which shall be in writing and sent by United States Mail, Certified Mail, Return Receipt Requested and shall be deemed to have been delivered five (5) days after the date of mailing. Addresses and e-mail addresses for such notices shall be the addresses indicated in the Quote Form.
12.2. The Parties agree that Castos shall be an independent contractor and not an agent, employee or representative of Client. Client shall have no right to direct or control the details of the Castos’s work. Castos shall not receive any fringe benefits or other benefits that the Client may provide to its employees and Castos agrees to be responsible for its own business overhead and costs of doing business and to furnish (or reimburse Client for) all tools and materials necessary to accomplish the services required of the Castos pursuant to this Agreement, and shall incur all expenses associated with performance, except as expressly provided in Exhibits or amendments to this Agreement. Castos shall be responsible for paying all taxes on payments received pursuant to this Agreement and that Client shall have no obligation to withhold taxes from service fees payable to the Castos hereunder. Castos hereby indemnifies and holds the Client harmless any obligation that may be imposed on Client (i) to pay in withholding taxes or similar items or (ii) resulting from Castos’s being determined not to be an independent contractor.
12.3 Except as specifically provided in this Agreement, the parties agree that any dispute or controversy arising out of, relating to or in connection with the interpretation, validity, construction, performance, breach or termination of this Agreement shall be submitted to binding arbitration to be held in New Castle County, Delaware in accordance with the rules of the American Arbitration Association (the “Rules”). The decision of the arbitrator shall be final, conclusive and binding on the parties to the arbitration. Judgment may be entered on the arbitrator’s decision in any court of competent jurisdiction. Each party shall bear the costs of its counsel. In addition to any award, the arbitrator shall have the right to assign the costs of the arbitration as the arbitrator deems just and equitable.
12.4. In interpreting the terms of this Agreement, the parties agree that the laws of the State of Delaware shall be applicable.
12.5 Parties shall retain all right, title and interest in and to each party’s respective intellectual property rights, including without limitation, all patents, inventions, trademarks, copyrights and trade secrets. Any intellectual property used, developed or otherwise reduced to practice in providing the Services to Client shall be the sole and exclusive property of Castos and/or its licensors. Client acknowledges and agrees that it does not acquire any ownership interest in any of the servers or other hardware used to provide the Services hereunder. Similarly, Castos does not acquire any ownership interest in the content or data that Client stores on the servers or transmit via the Services.
12.6. This Agreement, and any Statement of Work attached hereto, contains the entire agreement and understanding of the parties with respect to the subject matter hereof and supersedes and replaces all prior discussions, agreements, proposals, understandings, whether orally or in writing, between the parties related to the subject matter of this Agreement. This Agreement may be changed, modified or amended only in a written agreement that is duly executed by authorized representatives of the parties. If any provisions hereof are deemed to be illegal or unenforceable by a court of competent jurisdiction, the enforceability or effectiveness of the remainder of the Agreement shall not be affected and this Agreement shall be enforceable without reference to the unenforceable provision. No party’s waiver of any breach or accommodation to the other party shall be deemed to be a waiver of any subsequent breach.
12.7 This Agreement shall not be effective and neither party shall have any obligation to the other until such time as this Agreement is duly signed by both parties.
12.8 This Agreement may be executed in multiple counterparts, each of which shall be an original, and all of which when taken together shall constitute one and the same original document. PDF or other electronic signatures (ie, delivered by DocuSign or other reputable electronic platform) shall be sufficient to bind the parties hereto.
Castos will provide Technical Support to Customer via electronic mail on weekdays during the standard hours of 8:00 am through 5:00 pm Eastern US time, with the exclusion of Federal Holidays (“Support Hours”).
Customer may initiate a helpdesk ticket during Support Hours any time by emailing [[email protected]].
Castos will use commercially reasonable efforts to respond to all Helpdesk tickets within one (1) business day.