Service Agreement

  1. The Service. Company hereby subscribes to, and Company hereby agrees to provide to Client, the “Service,” which is comprised of the following, together with any and all other services provided by Company to facilitate Client’s broadcasting of video via the Internet, subject to the terms and conditions herein stated:
    1. The BoxCaster device and the Wireless Scoreboard Adapter (collectively, the Hardware”).
    2. The software embedded in the Hardware (the “Embedded Software”) and any other related software provided by Company to facilitate Client’s video broadcasting (collectively, the “Software”).
  2. Term; Termination.
    1. 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 (such renewal term, a “Renewal Term”; collectively, the Initial Term and Renewal Term are the “Term”) and shall automatically renew at the end of any Renewal 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. For the avoidance of doubt, fees paid by Client prior to termination are non-refundable. Notwithstanding the foregoing, and except as otherwise set forth in this Section, the Service includes a 30-day risk free trial period (the “Trial Period”). This trial offer applies only to clients who have not previously subscribed to the Service and specifically excludes clients who have subscribed to a Service (or any similar service) offered by any current or former affiliates or predecessors of the Company. Client may terminate this Agreement within 30 days of the Effective Date if (i) Client provides Company with written notice of termination within 30 calendar days of the Effective Date; (ii) Client returns the Hardware within 7 days of such notice; and (iii) such returned Hardware must be in “like new” working condition.
    2. Company may terminate this Agreement immediately upon written notice to Client in the event Client breaches any of the terms or obligations set forth herein. In the event of any such termination, Client shall promptly pay to Company all unpaid Fees covering the remainder of the Term.
    3. If Client terminates this Agreement before the expiration of the Term for any reason except as permitted during the Trial Period, or if Company terminates this Agreement due to breach by Client, then Client shall pay Company 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 Company to charge the Termination Fee to Client’s credit card on file with the Company or automatically withdraw the funds from Client’s bank account without further approval by Client.
    4. Upon any termination or expiration of this Agreement, Client’s right to access and use the Service, including without limitation the Hardware and Software (unless otherwise set forth in Section 4 hereof), will immediately terminate; and
    5. Client acknowledges and agrees that Company may make amendments to 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 Agreement. The Company shall provide notice to Client with respect to any material changes to the Agreement.
    6. The rights and obligations of Company and Client set forth in this Section 2(f) and in Sections 3 (Invoicing; Payment), 4 (Ownership), 6 (Disclaimer of Warranties),10 (Confidentiality), 12 (Indemnification), 13 (Limitation of Liability), 14 (Miscellaneous), 15 (Governing Law; Venue), 16 (Notices) and 17 (Entire Agreement) will survive any termination or expiration of this Agreement.
  3. Invoicing; Payment.
    1. Promptly after execution of this Agreement and on an annual basis thereafter, Client shall pay as consideration for its subscription to the Service (the “Fees”), which is described on the checkout page. The Fees may change at any time, provided Company gives Client at least thirty (30) days written notice.
    2. Client agrees to pay all amounts set forth on invoices from Company. Unless otherwise set forth in the invoice, all charges shall be due and payable net thirty (30) days from the invoice date. 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 the Company through a purchase order).
    3. If the full payment of an invoice amount has not been received by Company by the date on which it is due, a late charge equal to 3% of the of the delinquent amount will be charged to Client. In addition to late charges, if the full payment of an invoice amount has not been received within sixty (60) days after the invoice date, the Service will be suspended until full payment has been received.
    4. Client is responsible for paying any governmental taxes imposed on their use of the Service, including, but not limited to, sales, use or value-added taxes. To the extent Company is obligated to collect such taxes, the applicable tax will be charged.
  4. Grant of Rights; Ownership.
    1. Client’s rights with respect to the Hardware are indicated immediately below:
      1. Upon full payment of the purchase price for the Hardware set forth on the checkout page, thereafter Client shall own the Hardware and Company shall not have any right or interest in or to such Hardware, notwithstanding any termination of the Service.
    2. Company hereby grants to Client a limited, non-exclusive, non-assignable, non-transferable right and license to use the Software during the Term in accordance with this Agreement and all applicable laws, rules and regulations.
    3. Except as expressly set forth in this Agreement, Company and its licensors reserve and retain all right, title and interest (including without limitation all intellectual property and proprietary rights) in and to the Service, including without limitation the Hardware, Software and other components thereof, and to any online help resources, guides and manuals provided by Company for use with the Service (the “Documentation”).
    4. For the avoidance of doubt, and as between the parties hereto, each of the parties hereto shall have each every right to, and interest in, the audio, video and/or any other files, media or other content broadcast, transferred or otherwise transmitted pursuant to the provisions hereof, including, without limitation, the right to distribute, resell and otherwise disseminate all or any portion of the same.
  5. Warranties. Company warrants that the Service shall perform materially in accordance with the Documentation, and the functionality and security of the Service will not be materially decreased during the Term. Each party represents and warrants that it has the legal power to enter into, and to fully perform its obligations under the provisions of, this Agreement.
  6. Disclaimer of Warranties. THE SERVICE IS MADE AVAILABLE TO CLIENT ON AN “AS IS” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY. COMPANY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SERVICE TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE.
  7. Service Details.
    1. Company will store recorded video content for at least 30 days at no charge to Client, provided that this Agreement has not been terminated for any reason.
    2. Client authorizes Company to initiate device upgrades and system diagnostics remotely in an effort to ensure device uptime and broadcast quality.
    3. 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 the Service for events longer than eight (8) hours in duration, uses the Service for multiple events that in aggregate sum to longer than eight (8) hours in duration within a 24 hour period, or uses the Service for more than one (1) broadcast at any given time. Company also reserves the right to charge additional fees for abnormally large viewership as deemed by the Company.
    4. Company provides support 9 AM - 9 PM EST, Monday to Saturday, and 7 AM - 9 PM EST on Sunday. Inquiries will be responded to in the order of urgency, with live broadcasting issues being the first priority.
    5. Client agrees to use the Hardware as instructed. 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, Company will (at its option) repair or replace the affected Hardware. Company does not guarantee hardware or accessories provided by any third party; if defects in any such materials occur, Client is solely responsible for arranging for the repair or replacement thereof.
    6. If Client returns to Company any Wireless Scoreboard Adapter within thirty (30) days of the Effective Date, Company 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 is available if the unit is returned over thirty (30) days after the Effective Date, unless the unit is defective as described in Section 7(f) hereof.
    7. If Client purchases the ability to ticket broadcasts and ticket revenue is generated, or if Client accepts donations via Company's payment platform, Client will receive its revenue component via a paper check at the end of each quarter. Client will always be responsible to ensure it complies with any substantiation and documentation requirements for the donations it receives. 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, ticket revenue amounts will be applied to this past due amount in lieu of being disbursed to Client.
  8. Content Standards. The standards set forth in this Section 8 apply to all content broadcasted by Client using the Service. Client shall not use the Service for distributing, selling, or broadcasting media that is not owned or licensed by Client. In addition to complying with all applicable federal, state, local and international laws and regulations, such 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 Company or any other person or entity, if such is not the case.
  9. Network Disruptions; Server Outages. Company is not responsible for the sustained network performance of stream location or viewer location. Client agrees not to hold Company liable for network disruptions that may prevent the delivery of video to viewers. Client understands that network disruptions may affect the ability to reliably record the streamed video. Client will not hold Company responsible for Amazon Cloud Computing server outages. Client agrees that Company may remove public stream recordings when viewer behavior exceeds ten times (10x) normal viewer behavior (for example, due to viral traffic spikes).
  10. 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. Company will implement administrative, physical and electronic measures, in accordance with good industry practice, which are designed to 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 attempt to breach any electronic security measure. Subject to Company’s compliance with the Security Measures, Company will have no liability on account of any security breach caused by any such persons, entities, or technologies.
  11. 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.
  12. Indemnification.
    1. Client agrees to indemnify, defend and hold harmless Company for any and all claims, suits, proceedings, damages, judgments and expenses incurred by Company 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, or based on Client’s use of the Service.
    2. Company will defend (or settle) any suit or action brought against Client to the extent that it is based upon a claim that the Service 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. Company’s obligations under this Section 12(b) are contingent upon: (i) Client providing Company with prompt written notice of such claim; (ii) Client providing reasonable cooperation to Company in the defense and settlement of such claim; and (iii) Company having sole authority to defend or settle such claim. In the event Company’s right to provide the Service is enjoined or in Company’s reasonable opinion is likely to be enjoined, Company 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 COMPANY AND ITS LICENSORS WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE SERVICE. Company will have no liability under this Section 12(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 Company, or any use of the Service in a manner that violates this Agreement, any applicable law(s), or the instructions given to Client by Company.
  13. Limitation of Liability. EXCEPT IN CONNECTION WITH COMPANY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 12 (INDEMNIFICATION), IN NO EVENT WILL COMPANY'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 OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE AMOUNT PAID BY CLIENT HEREUNDER IN THE TWELVE (12) MONTH PERIOD PRECEDING THE INCIDENT.

    NEITHER COMPANY NOR ANY OTHER PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICE WILL 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 SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT COMPANY 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.

    THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
  14. Miscellaneous. This Agreement does not, and shall not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between Client and Company. 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 assignment 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. Company will not be responsible for any failure to fulfill any obligation due to any cause beyond its control.
  15. 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.
  16. Notices. Except as otherwise may be specified herein, all notices to Company 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) sending by confirmed email to Questions@boxcast.com. Company 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 16).
  17. Entire Agreement. This Agreement, when taken together with any exhibits, supplements or addenda hereto , the Terms of Service on Company’s website, 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.