Service Agreement

This Service Agreement is by and between BoxCast Inc.("BoxCast"), and the individual, organization, or other legal entity (“Client”) entering into this Service Agreement.

BY EXECUTING OR ACKNOWLEDGING RECEIPT OF THIS SERVICE AGREEMENT, CLICKING “ACCEPT” OR “AGREE” (OR SIMILAR LANGUAGE) TO THE SERVICE AGREEMENT WHEN MADE AVAILABLE, OR ACCESSING AND USING THE SERVICE, CLIENT AGREES TO BE BOUND BY THE TERMS OF THIS SERVICE AGREEMENT AND REPRESENTS THAT CLIENT IS DULY AUTHORIZED TO ACCEPT THIS SERVICE AGREEMENT ON BEHALF OF THE ORGANIZATION RECEIVING THE SERVICE. IF CLIENT DOES NOT AGREE TO THIS SERVICE AGREEMENT, CLIENT SHALL NOT ACCEPT, AGREE TO, ACCESS, OR OTHERWISE USE THE SERVICE.

The Service.
1. Software. Subject to and conditioned on Client’s payment of applicable fees and compliance with all other the terms and conditions of this Service Agreement and the applicable order (the “Agreement”), BoxCast hereby grants to Client, for Client’s internal business purposes only, a non-exclusive, non-transferable, non-sublicensable, limited right to access and use: (i) the software embedded in the Hardware to facilitate Client’s broadcasting (the “Embedded Software”); and/or (ii) the BoxCast software-as-a-service platform, whether accessed via the BoxCast website or a BoxCast mobile application, consistent with the terms of the applicable plan selected by Client (the “Platform”, together with the Embedded Software, the “Software”).
2. Hardware. Subject to and conditioned on Client’s payment of all applicable fees and compliance with the Agreement, BoxCast hereby agrees to provide Client the BoxCaster hardware device(s)(“Hardware”) described in the applicable order.
3. Documentation. Subject to and conditioned on Client’s payment of applicable fees and compliance with the Agreement, BoxCast hereby grants to Client, for Client’s internal business purposes only, a non-exclusive, non-transferable, non-sublicensable, limited right to access and use any online or printed help resources, guides, and/or manuals provided by BoxCast for use with the Service (the “Documentation”). The Software, Hardware, and Documentation are collectively referred to as the “Service”.
Term; Termination.
1. Term. This Agreement is effective as of the date that Client purchases the Service (the “Effective Date”) and shall continue for a period of one (1) year thereafter (the “Initial Term”), unless terminated pursuant to the terms hereof. This Agreement shall automatically renew at the end of the Initial Term and each term thereafter (such renewal term, a “Renewal Term”; collectively, the Initial Term and Renewal Term are the “Term”) unless either party provides written notice of termination to the other party at least thirty (30) days prior to the expiration of the Term.
2. Trial Period. If Client’s Software subscription includes a 30-day satisfaction guarantee (the “Trial Period”), such Trial Period is open to new subscribers only. A “new subscriber” is one that has not previously subscribed to any portion of the Service (including a free trial) or a similar service offered by any current or former affiliates or predecessors of BoxCast. If Client qualifies as a new subscriber, then during the Trial Period, Client may terminate this Agreement if (i) Client provides BoxCast with written notice of termination within 30 calendar days of the Effective Date; and (ii) Client returns the Hardware (if applicable) within 7 days of such notice in “like new” working condition. Upon termination during the Trial Period, BoxCast will refund any prepaid fees, provided that Client has not otherwise breached this Agreement. BoxCast’s refund of prepaid fees is Client’s sole remedy with respect to BoxCast’s 30-day satisfaction guarantee.
3. Termination for Breach. Either Client or BoxCast may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach.
4. Upon Termination.
  1. Upon Termination for Breach or Expiration. Upon any termination or expiration of this Agreement, Client’s right to access and use the Software will immediately terminate. If BoxCast terminates pursuant to Section 2(c) or if Client terminates this Agreement without cause, Client shall pay the Termination Fee described below. If Client terminates for cause pursuant to Section 2(c), BoxCast shall provide a pro-rata refund of any prepaid unused fees (if any). Except as specifically stated in this Agreement, no expiration or termination will affect Client’s obligation to pay all Fees or entitle Client to a pro-rata refund of unused Fees.
  2. Termination Fee. If Client terminates this Agreement before the expiration of the Term for any reason except as permitted during the Trial Period or due to BoxCast breach, or if BoxCast terminates this Agreement due to breach by Client, then Client shall pay BoxCast the lesser of $650 or the remainder of the balance due on the Term (the “Termination Fee”) within 7 days of the termination date. Client authorizes BoxCast to charge the Termination Fee to Client’s credit card on file with BoxCast or automatically withdraw the funds from Client’s bank account without further approval by Client.
  3. Survival. The rights and obligations of BoxCast and Client set forth in this Section 2(d), Sections 3 (Invoicing; Payment), 4 (Ownership), 5 (Disclaimer of Warranties), 6(e) (Disbursements for Revenue), 9 (Confidentiality), 11 (Indemnification), 12 (Limitation of Liability), 13 (Miscellaneous), 14 (Governing Law; Venue), 15 (Notices) and 17 (Entire Agreement) will survive any termination or expiration of this Agreement.
Invoicing; Payment.
1. Fees and Payment Authorization. Client will be required to select a plan and provide a credit card or other payment instrument information when placing an order. All payments shall be made (i) in United States currency, (ii) without deductions based on any taxes or withholdings, and (iii) using as a payment method automatic withdrawal from Client’s bank account, credit card, or paper check (provided that the paper check method of payment must be pre-approved by BoxCast through a purchase order). Client represents and warrants to BoxCast that payment information is true, and that Client is authorized to use the payment instrument. Client will promptly update account information with any changes (for example, a change in billing address or credit card expiration date) that may occur. Client agrees to pay BoxCast the amount that is specified in the payment plan (as well as any applicable taxes) in accordance with the terms of such plan and this Agreement. Client hereby authorizes BoxCast to bill the Client’s payment instrument in accordance with the terms of the applicable payment plan, as applicable (as well as any applicable taxes), and Client further agrees to pay any charges so incurred without offset or deduction. If BoxCast has agreed to invoice Client for the Service, Client agrees to pay all amounts set forth on invoices from BoxCast within thirty (30) days from the invoice date unless otherwise agreed in writing.
2. Taxes. Client is responsible for paying any governmental taxes imposed on Client’s use of the Service, including, but not limited to, sales, use or value-added taxes. To the extent BoxCast is obligated to collect such taxes, the applicable tax will be charged to Client’s account.
3. Automatic Renewal; Price Changes. The Service shall automatically renew according to the Client’s selected subscription plan unless changed or terminated by Client prior to the renewal date by notifying BoxCast in writing to questions@boxcast.com. BoxCast reserves the right to change BoxCast's price for Service at any time upon thirty (30) days’ notice, provided that the price change will not become effective until renewal of the Client’s subscription. If Client disagrees with the change in price, then Client may terminate the Service before renewal by providing BoxCast written notice at any time prior to the change in price becoming effective. Client’s continued use of the Service after the price change becomes effective constitutes agreement to pay the changed amount.
4. Disputed Charges; Late Payments. If Client dispute any charges, Client must provide written notice to BoxCast within fourteen (14) days after the earlier of the date that BoxCast charges the Client’s payment instrument or Client receives an invoice from BoxCast. In the event that BoxCast is unable to charge Client’s account as authorized by Client when Client enrolled in the Service for any outstanding fees, BoxCast, may, in its sole discretion, without limiting BoxCast’s other rights and remedies: (i) seek to update account information through third party sources (i.e., Client’s bank or a payment processor) to continue charging the Client account as authorized by Client; (ii) charge interest on the past due amount at the rate of 3.0% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (iii) charge any and all costs incurred by BoxCast in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and/or (iv) suspend Client’s and its authorized users’ access to any portion or all of the Service until such amounts are paid in full.
Intellectual Property Rights; Ownership.
1. Hardware. If Client purchased the Hardware pursuant to the terms of the Order, then upon full payment for the applicable Hardware and subject to BoxCast’s intellectual property rights pursuant to Section 4(b), Client shall retain ownership of such Hardware notwithstanding any termination of the Service.
2. BoxCast Intellectual Property Rights. The Service is owned by BoxCast (and its licensors) and is protected by applicable intellectual property laws and regulations, including United States and international copyright laws. As between the parties hereto, BoxCast retains all right, title, and interest in and to the Service and any derivative works that are created and/or developed based, in whole or in part, on access to and use of the Service. Nothing in this Service Agreement shall operate to transfer or convey to Client any rights in any Software as part of the Service. To the extent Client provides BoxCast with any feedback, best practices, templates, systems, ideas, or technical improvement suggestions about the Service (“Feedback”), Client acknowledges and agrees that BoxCast will be the owner of all such Feedback and may use and incorporate the Feedback into the Service without compensation or attribution to Client. BoxCast may monitor Client’s use of the Service and collect and compile data and information related to Customer’s use of the Service that is in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Service (“Aggregated Statistics”). As between BoxCast and Client, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by BoxCast. Client acknowledges that BoxCast may compile Aggregated Statistics based on Client Content input into the Service. Client agrees that BoxCast may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Client or Client Confidential Information.
Disclaimer of Warranties. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BOXCAST DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES, DUTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, RELIABILITY OR AVAILABILITY, ACCURACY OR COMPLETENESS, WORKMANLIKE EFFORT, LACK OF VIRUSES, AND LACK OF NEGLIGENCE. BOXCAST DOES NOT REPRESENT THAT THE SERVICE, OR ANY CONTENT OR THIRD-PARTY PRODUCTS AVAILABLE THEREON, WILL BE COMPLETELY SECURE OR WILL MEET CLIENT’S REQUIREMENTS, OR THAT THE OPERATION OF, OR ACCESS TO, THE SERVICE, CONTENT, OR THIRD-PARTY PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE BOXCAST SERVICE WILL BE CORRECTED. BOXCAST MAKES NO WARRANTY THAT (I) THE SERVICE WILL MEET CLIENT’S REQUIREMENTS OR EXPECTATIONS, OR (II) THAT CLIENT WILL OBTAIN ANY SPECIFIC RESULTS OR PERFORMANCE.
Service Details; Restrictions.
1. Use Restrictions.
  1. Client shall not use the Service for any purposes beyond the scope of the access or use granted in this Service Agreement and the applicable order. Client shall not at any time, directly or indirectly, and shall not permit any authorized users to: (i) copy, modify, or create derivative works of the Software or Hardware, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software or Hardware; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Software or Hardware, in whole or in part; (iv) remove any proprietary notices from the Software or Hardware; or (v) use the Software or Hardware in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law. Client shall not access any non-Client produced data directly from the Hardware or Software under any circumstances. Client agrees to promptly notify BoxCast if Client becomes aware of, or suspects any unauthorized, access, use or misuse of the Service.
  2. For Services that involve streaming video, the Client agrees to use the Service primarily for events with durations less than eight (8) hours. Client may be subject to additional fees if Client uses a streaming Service for (i) events longer than eight (8) hours in duration, (ii) multiple events that in aggregate sum to longer than eight (8) hours in duration within a 24 hour period, or (iii) more than one (1) broadcast at any given time. BoxCast reserves the right to charge additional fees for abnormally large viewership, as determined by BoxCast in its sole discretion.
2. Storage. BoxCast will provide storage for recorded video content pursuant to the terms of the applicable order, provided that this Agreement has not been breached by Client or terminated for any reason.
3. Support. Client authorizes BoxCast to initiate device upgrades and system diagnostics remotely to ensure device uptime and broadcast quality. BoxCast provides support 9 AM - 9 PM EST, Monday to Saturday, and 7 AM - 8 PM EST on Sunday. Inquiries are handled in the order of urgency, with live broadcasting issues being the highest priority.
4. Hardware Replacement/Repair.
  1. Client agrees to use the Hardware only as instructed by the Documentation. Should Hardware defects occur given normal Client use (i.e., normal wear and tear) within one (1) year of receipt of such affected Hardware by Client, BoxCast will (at its option) repair or replace the affected Hardware. BoxCast’s obligations under this Section 6(d) will not apply to the extent that the Hardware defect arises from: (A) use of the Hardware in combination with software, hardware, equipment, or technology not provided by BoxCast or authorized by BoxCast in writing; (B) modifications to the Hardware not made by BoxCast; or (C) products, hardware or accessories provided by any third party.
  2. If Client returns to BoxCast any Wireless Scoreboard Adapter within thirty (30) days of the Effective Date, BoxCast will refund to Client the price of the unit (as reflected on the invoice therefor), less a 20% restocking fee. No refunds for any Wireless Scoreboard Adapter will be provided if the unit is returned more than thirty (30) days after the Effective Date, unless the unit is defective as described in Section 6(d)(i) hereof.
5. Disbursements for Revenue. If Client’s order includes ticketed broadcasts, and ticket revenue is generated, or if Client accepts donations via BoxCast’s payment platform, Client will receive the applicable generated revenue via a paper check at the end of each quarter. The disbursement schedule is as follows: January-March (with disbursement on April 30th), April-June (with disbursement on July 31st), July-September (with disbursement on October 31st) and October-December (with disbursement on January 31st). Please note, if the disbursement is less than $100 at the time of the quarterly disbursement, it will be combined with the following quarterly disbursement. If Client’s account is past due or if any ticket or donation refunds are provided to a user, BoxCast may apply any new revenue amounts to offset any past due amount owed to BoxCast. Client is responsible for compliance with any all laws and regulations, including without limitation, tax requirements, for the ticket revenue or donations that it receives, and agrees to indemnify BoxCast for any breach or alleged breach of thereof.
6. Third Party Products. BoxCast may from time to time make certain products or services provided by third parties, that may be used with or incorporated into the Service, including but not limited to open-source software or other third-party software or services (collectively, “Third-Party Products") available to Client. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions and flow through provisions, as applicable. If you do not agree to abide by the applicable terms for any such Third-Party Products, then you should not install or use such Third-Party Products. As between the BoxCast and Client, BoxCast has no liability with respect to Client’s procurement or use of Third-Party Products.
Content.
1. Responsibility for Content. The Service contain interactive features that allow users or other third parties to broadcast, upload, post, browse, submit, publish, display or transmit access to video, audio, text, software, scripts, graphics, photos, sounds, music, audiovisual combinations, interactive features, files, media, and other materials on, from or through the Site (collectively referred to as “Content"). All Content must comply with the Content Standards set forth below. Client understands and agrees that Client is responsible for any Content submitted or contributed to the Service by Client or on Client’s behalf, and Client has full responsibility for such Content, including but not limited to its legality, reliability, accuracy, and appropriateness. BoxCast is not responsible or liable to Client or to any third party for the Content or accuracy of any Content posted by Client or any other user of the Service. Client acknowledges and agrees that BoxCast has the right, but not the obligation, to:
  1. Remove or refuse to post any Content for any or no reason, in its sole discretion;
  2. Take any action with respect to any Content that BoxCast deems necessary or appropriate in its sole discretion, such as if BoxCast believes that such Content violates the Content Standards listed below, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Service or the public, or could create liability for BoxCast;
  3. Disclose Client’s identity or other information about Client to any third party who claims that material posted by Client violates their rights, including without limitation their intellectual property rights or data protection rights;
  4. Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Service; and
  5. Terminate or suspend Client’s access to all or part of the Service for any or no reason, including without limitation, any violation of these Terms of Use.
  Without limiting the foregoing, BoxCast has the right to fully cooperate with any law enforcement authorities or court order requesting or directing it to disclose the identity or other information of anyone posting any materials on or through the Service. CLIENT WAIVES AND HOLDS HARMLESS BOXCAST AND ITS AFFILIATES, LICENSEES AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS.
  BoxCast cannot undertake to review all Content before it is posted via the Services, and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, BoxCast assumes no liability for any action or inaction regarding transmissions, communications or Content provided by any user or third party.
2. Content Ownership. Any user who submits Content on, from, or through the Service maintains full authorship media rights to such Content. Notwithstanding the foregoing, Client acknowledges and agrees that by providing Content to the Service, Client grants BoxCast and its affiliates and service providers, and each of their licensees, successors and assigns, a non-exclusive, worldwide, royalty free, perpetual, irrevocable, and transferrable right to fully exploit and distribute Content, and to broadcast, distribute, use, modify, perform, display, reproduce, resell, create derivative works, and otherwise disseminate such Content, or any portion thereof, for any purpose, including, but not limited to, live and recorded streaming on the Internet, statistical analysis, and promotional materials. Client shall not use the Service for distributing, transmitting, selling, or broadcasting Content that is not owned or licensed by Client. Any Content posted to the Service by Client will be considered non-confidential and non-proprietary. Client represents and warrants that (i) Client owns or controls all rights in and to Client Content, including without limitation, all intellectual property and privacy rights, and has the right to grant the rights and licenses granted herein to BoxCast and its affiliates and service providers, and each of their and its respective licensees, successors, and assigns; and (ii) all of Client Content does and will comply with the terms of this Service Agreement.
3. Content Standards. The standards set forth below apply to all Content distributed, submitted or otherwise transmitted by Client in connection with the Service. In addition to complying with all applicable federal, state, local and international laws and regulations, Content shall not:
  1. Contain any material which is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, or inflammatory;
  2. Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, age, or other protected class;
  3. Exploit, harm or attempt to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise;
  4. Violate the terms of the CAN-SPAM Act of 2003 that is intended to combat unwanted email, or SPAM, specifically communications whose primary purpose is advertising or promoting a commercial product or service, including content on a website;
  5. Infringe any patent, trademark, trade secret, copyright or other intellectual property or other rights of any other person;
  6. Violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations;
  7. Be likely to deceive any person;
  8. Promote any illegal activity, or advocate, promote or assist any unlawful act;
  9. Cause annoyance, inconvenience or needless anxiety or be likely to upset, embarrass, alarm or annoy any other person;
  10. Impersonate any person, or misrepresent any person’s identity or affiliation with any person or organization;
  11. Involve commercial activities or sales, such as contests, sweepstakes and other sales promotions, barter or advertising; or
  12. Give the impression that they emanate from or are endorsed by BoxCast or any other person or entity, if that is not the case.
Network Disruptions; Server Outages. BoxCast is not responsible for the sustained network performance of stream location or viewer location. Client agrees that BoxCast is not liable for network disruptions that may prevent the delivery of video to viewers, including but not limited to Amazon Cloud Computing server outages. Client understands that network disruptions may affect the ability to reliably record the streamed video. Client agrees that BoxCast may remove public stream recordings when viewer behavior exceeds ten times (10x) normal viewer behavior (for example, due to viral traffic spikes).
Confidentiality.
1. “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including without limitation the terms of this Agreement, the Service, the Hardware, the Software and Documentation, nonpublic financial information, pricing, business plans, product designs, techniques, methods and processes, but does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. Neither party will disclose Confidential Information except to such party’s advisors as have a reasonable, business need to know such information, provided that any such third parties will, before they may access such information, either (a) execute a binding agreement to keep such information confidential, or (b) be subject to a professional obligation to maintain the confidentiality of such information.
2. The Receiving Party will (i) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who are legally bound to protect such Confidential Information consistent with the requirements of this Agreement. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest, limit, or protect the disclosure.
3. BoxCast will implement and maintain appropriate administrative, physical, and electronic measures to secure the Service and protect Confidential Information from unauthorized access, use or disclosure (collectively, the “Security Measures”). Client acknowledges that, notwithstanding the foregoing, no product, hardware, software, or service can provide a completely secure mechanism of electronic transmission or communication and that there are persons and entities, including enterprises, governments, and quasi-governmental actors, as well as technologies, that may breach, or attempt to breach any electronic security measure. Subject to BoxCast’s compliance with the Security Measures, BoxCast will have no liability due to any security breach caused by any such persons, entities, or technologies.
4. Client acknowledges and agrees that all information Client provides to register for the Service or otherwise, including but not limited to through the use of any interactive features on the Service, is governed by the BoxCast Privacy Policy (the “Privacy Policy”), and Client consents to all actions BoxCast takes with respect to Client information consistent with the Privacy Policy.
Compliance with Law. Each party will comply with all applicable laws and regulations with respect to its activities under this Agreement including, but not limited to, the export laws and regulations of the United States and other applicable jurisdictions.
Indemnification.
1. Client agrees to indemnify, defend and hold harmless BoxCast for any and all claims, suits, proceedings, damages, judgments and expenses incurred by BoxCast in connection with or arising from any third-party claim based upon Client’s breach or alleged breach of any term or condition of this Agreement, any Client Content, or based on Client’s use of the Service.
2. BoxCast will indemnify Client against any suit or action brought against Client to the extent that it is based upon a claim that the Service, as provided by BoxCast, infringes or misappropriates the intellectual property rights of any third party, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded against Client. BoxCast’s obligations under this Section 11(b) are contingent upon: (i) Client providing BoxCast with prompt written notice of such claim; (ii) Client providing reasonable cooperation to BoxCast in the defense and settlement of such claim; and (iii) BoxCast having sole authority to defend or settle such claim. In the event BoxCast’s right to provide the Service is enjoined or in BoxCast’s reasonable opinion is likely to be enjoined, BoxCast may obtain the right to continue providing the Service, replace or modify the Service so that it becomes non-infringing, or, if such remedies are not reasonably available, terminate this Agreement without liability to Client. THE FOREGOING STATES THE ENTIRE OBLIGATION OF BOXCAST AND ITS LICENSORS WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE SERVICE. BoxCast will have no liability under this Section 11(b) to the extent that any third-party claims described herein are based on any combination of the Service with products, services, methods, or other elements not furnished by BoxCast, including without limitation, any Third-Party Products, any Content, or any use of the Service in a manner that violates this Agreement, any applicable law(s), or the instructions given to Client by BoxCast.
Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLIABLE LAW, IN NO EVENT WILL BOXCAST, ITS AFFILIATES, LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS (THE “BOXCAST ENTITIES”) BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SERVICE, OR FROM THE USE OF OR INABILITY TO USE THE SERVICE OR ANY CONTENT OR THIRD-PARTY PRODUCTS THEREON, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT BOXCAST HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

EXCEPT IN CONNECTION WITH BOXCAST’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 11 (INDEMNIFICATION), IN NO EVENT WILL BOXCAST’S AGGREGATE LIABILITY TO CLIENT OR ANY THIRD PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE SERVICE, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY CLIENT HEREUNDER IN THE TWELVE (12) MONTH PERIOD PRECEDING THE INCIDENT.

THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
Miscellaneous. The parties' relationship is that of independent contractors. Neither party is an agent for the other, nor does either party have the right to bind the other to any agreement with a third party. If any provision of this Agreement or portion thereof is held to be unlawful, void, or for any reason unenforceable, that provision or portion thereof, to the extent required, will be severed from this Agreement but such severance will not affect the validity and enforceability of the remaining provisions hereof. Client may not assign, transfer or sublicense any or all of its rights or obligations hereunder. Any attempt to transfer or assign this Service Agreement in violation hereof shall be null and void. No waiver by either party of any breach or default hereunder will be deemed to be a waiver or of any proceeding or subsequent breach or default. Any heading, caption or section title contained herein is for convenience only, and in no way defines or explains any section or provision hereof. BoxCast will not be responsible for any failure to fulfill any obligation due to any cause beyond its control.
Governing Law; Venue. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Ohio without regard to its conflict of laws rules. The state and federal courts located in Cuyahoga County, Ohio shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts.
Notices. Except as otherwise may be specified herein, all notices to BoxCast shall be made in writing and will be deemed to have been given upon: (a) upon receipt, when delivered personally; (b) the second business day after mailing via certified or registered mail; or (c) upon receipt, when sent by confirmed email to questions@boxcast.com. Client consents to receive from BoxCast communications including notices, agreements, legally required disclosures, or other information in connection with the Service electronically. BoxCast may provide notices to Client using the email address or physical address specified by the Client when entering in this Agreement or establishing Client’s account for the Service (or such other address as the Client may thereafter specify by notice given in accordance with this Section 15).
Modifications. Client acknowledges and agrees that BoxCast may change or modify this Agreement and that such Agreement, as amended, shall govern Client’s use of the Service upon the renewal of the then-current term of Client’s subscription. BoxCast shall provide notice to Client with respect to any material changes to the Agreement. Continued use of the Service following the effective date of any amendment constitutes Client’s acceptance of the changes.
Entire Agreement. This Agreement, when taken together with any exhibits, supplements or addenda hereto, the BoxCast Terms of Use, the Privacy Policy, and any additional terms that explicitly incorporate this Agreement by reference hereto, constitutes the entire agreement between such parties as to the subject matter hereof and supersedes all prior documents, negotiations and drafts of the parties with respect to the subject matter hereof, whether written or verbal. This Agreement may not be construed against either party hereto by reason of the drafting or preparation thereof.

Service Agreement

LAST MODIFIED July 25, 2023