Updated November 6th, 2019
This BRNDBOT LLC Subscription Terms of Service ("Agreement") is entered into by and between the BRNDBOT LLC entity set forth below ("BRNDBOT LLC" or “we”) and the entity or person placing an order for or accessing any Services ("Customer" or "you"). You and BRNDBOT LLC are also sometimes referred to in this Agreement individually as a “Party” and collectively as the “Parties”. If you are accessing or using the Services on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to "you" or "Customer" reference your company.
This Agreement permits Customer to purchase subscriptions to online software-as-a-service products and other services from BRNDBOT LLC pursuant to any BRNDBOT LLC ordering documents, online registration, order descriptions or order confirmations referencing this Agreement ("Order Form(s)") and sets forth the basic terms and conditions under which those products and services will be delivered. This Agreement will govern Customer's initial purchase on the Effective Date as well as any future purchases made by Customer that reference this Agreement.
The "Effective Date" of this Agreement is the date which is the earlier of (a) Customer's initial access to any Service (as defined below) through any online provisioning, registration or order process or (b) the effective date of the first Order Form referencing this Agreement.As used in this Agreement, "BRNDBOT LLC" means (a) BRNDBOT LLC, a Massachusetts limited liability company with offices at 31 St James Ave, Boston Massachusetts, USA.
Modifications to this Agreement: From time to time, BRNDBOT LLC may modify this Agreement. Unless otherwise specified by BRNDBOT LLC, changes become effective for Customer upon renewal of Customer's current Subscription Term (as defined below) or entry into a new Order Form. BRNDBOT LLC will use reasonable efforts to notify Customer of the changes through communications via Customer's account, email or other means. Customer may be required to click to accept or otherwise agree to the modified Agreement before renewing a Subscription Term or entering into a new Order Form, and in any event continued use of the Services after the updated version of this Agreement goes into effect will constitute Customer's acceptance of such updated version. If BRNDBOT LLC specifies that changes to the Agreement will take effect prior to Customer's next renewal or order (such as for legal compliance or product change reasons) and Customer objects to such changes, Customer may terminate the applicable Subscription Term and receive as its sole remedy a refund of any fees Customer has pre-paid for use of the applicable Services for the terminated portion of the Subscription Term.
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING ANY SERVICES, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE ANY SERVICES. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT. THIS AGREEMENT CONTAINS MANDATORY ARBITRATION PROVISIONS THAT REQUIRE THE USE OF ARBITRATION TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS. PLEASE READ IT CAREFULLY.
"Affiliate" means any entity under the control of Customer where "control" means ownership of or the right to control greater than 50% of the voting securities of such entity.
"AUP" means BRNDBOT LLC's Acceptable Use Policy, available at https://www.brandbot.com/acceptable-use-policy or a successor URL.
"Laws" means all applicable local, state, federal and international laws, regulations and conventions, including, without limitation, those related to data privacy and data transfer, international communications, and the exportation of technical or personal data.
"BRNDBOT LLC App" means any mobile application or desktop client software included in the applicable Service that is made available by BRNDBOT LLC.
"Contractor" means an independent contractor or consultant who is not a competitor of BRNDBOT LLC.
"Customer Data" means any data of any type that is submitted to the Services by or on behalf of Customer, including without limitation: (a) data submitted, uploaded or imported to the Services by Customer (including from Third Party Platforms) and (b) data provided by or about People (including chat and message logs) that are collected from the Customer Properties using the Services and (c) data used in messaging activity to People (including email and email campaigns).
"Customer Properties" means Customer's websites, apps, or other offerings owned and operated by (or for the benefit of) Customer through which Customer uses the Services to communicate with People.
"Dashboard" means BRNDBOT LLC's user interface for accessing and administering the Services that Customer may access via the web or the BRNDBOT LLC Apps."Documentation" means the technical user documentation provided with the Services.
"Feedback" means comments, questions, suggestions or other feedback relating to any BRNDBOT LLC product or service.
"People" (in the singular, "Person") means Customer's end user customers, potential customers, and other users of and visitors to the Customer Properties.
"Permitted User" means an employee or Contractor of Customer or its Affiliate who is authorized to access the Service."Sensitive Personal Information" means any of the following: (i) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards ("PCI DSS"); (ii) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act ("HIPAA"); or (iii) any other personal data of an EU citizen deemed to be in a "special category" (as identified in EU Data Protection Directive 95/46/EC or any successor directive or regulation).
"Services" means BRNDBOT LLC's proprietary software-as-a-service solution(s), including the Dashboard, BRNDBOT LLC application programming interfaces (APIs), BRNDBOT LLC Code and BRNDBOT LLC Apps, as described in the applicable Order Form."Taxes" means any sales, use, GST, value-added, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of BRNDBOT LLC.
"Third-Party Platform" means any software, software-as-a-service, data sources or other products or services not provided by BRNDBOT LLC that are integrated with Services as described in the Documentation.
2.1. Services Overview.
BRNDBOT LLC's Services are a suite of messaging software-as-a-service solutions. The Services help the Customer easily manage communicating with People under different circumstances. The Services also help Customer managing Customer Data. Customer may import and export Customer Data between the Services and certain Third-Party Platforms through supported integrations. The Services also include BRNDBOT LLC Code deployed on Customer Properties to enable forms and messaging.
2.2. Provision of Services.
Each Service is provided on a subscription basis for a set term designated on the Order Form (each, a "Subscription Term"). BRNDBOT LLC may also offer Professional Services related to certain Services. Customer will purchase and BRNDBOT LLC will provide the specific Services and related Professional Services (if any) as specified in the applicable Order Form.
2.3. Access to Services .
Customer may access and use the Services solely for its own benefit and in accordance with the terms and conditions of this Agreement, the Documentation and any scope of use restrictions designated in the applicable Order Form (including without limitation the number of People tracked). Use of and access to the Services is permitted only by Permitted Users. If Customer is given API keys or passwords to access the Services on BRNDBOT LLC's systems, Customer will require that all Permitted Users keep API keys, user ID and password information strictly confidential and not share such information with any unauthorized person. User IDs are granted to individual, named persons and may not be shared. If Customer is accessing the Services using credentials provided by a third party (e.g., Google), then Customer will comply with all applicable terms and conditions of such third party regarding provisioning and use of such credentials. Customer will be responsible for any and all actions taken using Customer's accounts and passwords. If any Permitted User who has access to a user ID is no longer an employee (or Contractor, as set forth below) of Customer, then Customer will immediately delete such user ID and otherwise terminate such Permitted User's access to the Service. The right to use the Services includes the right to deploy BRNDBOT LLC Code on Customer Properties in order to enable messaging, chat and similar functionality and to collect Customer Data for use with the Services as further described below.
2.4. BRNDBOT LLC Apps.
To the extent BRNDBOT LLC provides BRNDBOT LLC Apps for use with the Services, subject to all of the terms and conditions of this Agreement, BRNDBOT LLC grants to Customer a limited, non-transferable, non-sublicensable, non-exclusive license during any applicable Subscription Term to use the object code form of the BRNDBOT LLC Apps internally, but only in connection with Customer's use of the Service and otherwise in accordance with the Documentation and this Agreement.
2.5. Deployment of BRNDBOT LLC Code.
Subject to all of the terms and conditions of this Agreement, BRNDBOT LLC grants to Customer a limited, non-transferable, non-sublicensable, non-exclusive license during any applicable Subscription Term to copy the BRNDBOT LLC Code in the form provided by BRNDBOT LLC on Customer Properties solely to support Customer's use of the Service and otherwise in accordance with the Documentation and this Agreement. Customer must implement BRNDBOT LLC Code on the Customer Properties in order to enable features of the Services. Customer will implement all BRNDBOT LLC Code in strict accordance with the Documentation and other instructions provided by BRNDBOT LLC. Customer acknowledges that any changes made to the Customer Properties after initial implementation of BRNDBOT LLC Code may cause the Services to cease working or function improperly and that BRNDBOT LLC will have no responsibility for the impact of any such Customer changes.
2.6. Contractors and Affiliates.
Customer may permit its Contractors and its Affiliates' employees and Contractors to serve as Permitted Users, provided Customer remains responsible for compliance by such individuals with all of the terms and conditions of this Agreement, and any use of the Services by such individuals is for the sole benefit of Customer.
2.7. General Restrictions.
Customer will not (and will not permit any third party to): (a) rent, lease, provide access to or sublicense the Services to a third party; (b) use the Services to provide, or incorporate the Services into, any product or service provided to a third party; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to BRNDBOT LLC); (d) copy or modify the Services or any Documentation, or create any derivative work from any of the foregoing; (e) remove or obscure any proprietary or other notices contained in the Services (including without limitation (i) the "Powered by BRNDBOT LLC" designation that may appear as part of the deployment of the Services on Customer Properties and (ii) notices on any reports or data printed from the Services); or (f) publicly disseminate information regarding the performance of the Services.
2.8. BRNDBOT LLC APIs.
If BRNDBOT LLC makes access to any APIs available as part of the Services, BRNDBOT LLC reserves the right to place limits on access to such APIs (e.g., limits on numbers of calls or requests). Further, BRNDBOT LLC may monitor Customer's usage of such APIs and limit the number of calls or requests Customer may make if BRNDBOT LLC believes that Customer's usage is in breach of this Agreement or may negatively affect the Services (or otherwise impose liability on BRNDBOT LLC).
2.9. Trial Subscriptions.
If Customer receives free access or a trial or evaluation subscription to the Service (a "Trial Subscription"), then Customer may use the Services in accordance with the terms and conditions of this Agreement for a period of fourteen (14) days or such other period granted by BRNDBOT LLC (the "Trial Period"). Trial Subscriptions are permitted solely for Customer's use to determine whether to purchase a paid subscription to the Services. Trial Subscriptions may not include all functionality and features accessible as part of a paid Subscription Term. If Customer does not enter into a paid Subscription Term, this Agreement and Customer's right to access and use the Services will terminate at the end of the Trial Period. BRNDBOT LLC has the right to terminate a Trial Subscription at any time for any reason. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, BRNDBOT LLC WILL HAVE NO WARRANTY, INDEMNITY, SUPPORT, OR OTHER OBLIGATIONS WITH RESPECT TO TRIAL SUBSCRIPTIONS.
3.1. Rights in Customer Data.
As between the parties, Customer will retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data as provided to BRNDBOT LLC. Subject to the terms of this Agreement, Customer hereby grants to BRNDBOT LLC a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of and display the Customer Data solely to the extent necessary to provide the Services to Customer.
3.2. Storage of Customer Data.
BRNDBOT LLC does not provide an archiving service. BRNDBOT LLC agrees only that it will not intentionally delete any Customer Data from any Service prior to termination of Customer's applicable Subscription Term. BRNDBOT LLC expressly disclaims all other obligations with respect to storage.
3.3. Customer Obligations.
3.4. Indemnification by Customer
Customer will indemnify, defend and hold harmless BRNDBOT LLC from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs) arising out of or in connection with any claim arising from or relating to any Customer Data or breach or alleged breach by Customer of Section 3.3 (Customer Obligations). This indemnification obligation is subject to Customer receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for Customer to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all necessary cooperation of BRNDBOT LLC at Customer's expense. Notwithstanding the foregoing sentence, (a) BRNDBOT LLC may participate in the defense of any claim by counsel of its own choosing, at its cost and expense and (b) Customer will not settle any claim without BRNDBOT LLC's prior written consent, unless the settlement fully and unconditionally releases BRNDBOT LLC and does not require BRNDBOT LLC to pay any amount, take any action, or admit any liability.
3.5. Aggregated Anonymous Data
Notwithstanding anything to the contrary herein, Customer agrees that BRNDBOT LLC may obtain and aggregate technical and other data about Customer's use of the Services that is non-personally identifiable with respect to Customer ("Aggregated Anonymous Data"), and BRNDBOT LLC may use the Aggregated Anonymous Data to analyze, improve, support and operate the Services and otherwise for any business purpose during and after the term of this Agreement, including without limitation to generate industry benchmark or best practice guidance, recommendations or similar reports for distribution to and consumption by Customer and other BRNDBOT LLC customers. For clarity, this Section 3.5 does not give BRNDBOT LLC the right to identify Customer as the source of any Aggregated Anonymous Data.
3.6 Data Protection Addendum
If you are a paying subscriber to the Service, to the extent that BrandBot processes any Personal Information (as defined in the DPA) contained in User Content that is subject to the GDPR (as defined in the DPA), on your behalf, in the provision of the Service, the terms of the data processing addendum shall apply and the parties agree to comply with such terms. For the purposes of the Standard Contractual Clauses attached to the DPA, when you are the data exporter, your agreeing to these Terms of Service shall be treated as signing of the DPA, including, without limitation, the Standard Contractual Clauses and their Appendices.
BRNDBOT LLC agrees to use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of any Service or Customer Data. However, BRNDBOT LLC will have no responsibility for errors in transmission, unauthorized third-party access or other causes beyond BRNDBOT LLC's control.
The Services may support integrations with certain Third-Party Platforms. In order for the Services to communicate with such Third-Party Platforms, Customer may be required to input credentials in order for the Services to access and receive relevant information from such Third-Party Platforms. By enabling use of the Services with any Third-Party Platform, Customer authorizes BRNDBOT LLC to access Customer's accounts with such Third-Party Platform for the purposes described in this Agreement. Customer is solely responsible for complying with any relevant terms and conditions of the Third-Party Platforms and maintaining appropriate accounts in good standing with the providers of the Third-Party Platforms. Customer acknowledges and agrees that BRNDBOT LLC has no responsibility or liability for any Third-Party Platform or any Customer Data exported to a Third-Party Platform. BRNDBOT LLC does not guarantee that the Services will maintain integrations with any Third-Party Platform and BRNDBOT LLC may disable integrations of the Services with any Third-Party Platform at any time with or without notice to Customer. For clarity, this Agreement governs Customer's use of and access to the Services, even if accessed through an integration with a Third-Party Platform.
6.1. BRNDBOT LLC Technology.
This is a subscription agreement for access to and use of the Services. Customer acknowledges that it is obtaining only a limited right to the Services and that irrespective of any use of the words "purchase", "sale" or like terms in this Agreement no ownership rights are being conveyed to Customer under this Agreement. Customer agrees that BRNDBOT LLC or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Services and all Documentation, professional services deliverables and any and all related and underlying technology and documentation and any derivative works, modifications or improvements of any of the foregoing, including as may incorporate Feedback (collectively, "BRNDBOT LLC Technology"). Except as expressly set forth in this Agreement, no rights in any BRNDBOT LLC Technology are granted to Customer. Further, Customer acknowledges that the Services are offered as an on-line, hosted solution, and that Customer has no right to obtain a copy of any of the Services, except for BRNDBOT LLC Code and the BRNDBOT LLC Apps in the format provided by BRNDBOT LLC.
Customer.From time to time, may submit Feedback to BRNDBOT LLC. BRNDBOT LLC may freely use or exploit Feedback in connection with any of its products or services.
7.1. Subscription Term and Renewals.
Unless otherwise specified on the applicable Order Form, each Subscription Term will automatically renew on a monthly basis unless either party gives written notice of termination prior to the next billing cycle.
7.2. Fees and Payment.
All fees are as set forth in the applicable Order Form and will be paid by Customer within thirty (30) days of invoice, unless (a) Customer is paying via Credit Card (as defined below) or (b) otherwise specified in the applicable Order Form. Except as expressly set forth in Section 9 (No Warranty) and Section 11 (Indemnification), all fees are non-refundable. Customer is responsible for paying all Taxes, and all Taxes are excluded from any fees set forth in the applicable Order Form. If Customer is required by Law to withhold any Taxes from Customer's payment, the fees payable by Customer will be increased as necessary so that after making any required withholdings, BRNDBOT LLC receives and retains (free from any liability for payment of Taxes) an amount equal to the amount it would have received had no such withholdings been made. Any late payments will be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.
7.3. Payment Via Credit Card.
If you are purchasing the Services via credit card, debit card or other payment card ("Credit Card"), the following terms apply:Recurring Billing Authorization. By providing Credit Card information and agreeing to purchase any Services, Customer hereby authorizes BRNDBOT LLC (or its designee) to automatically charge Customer's Credit Card on the same date of each calendar month (or the closest prior date, if there are fewer days in a particular month) during the Subscription Term for all fees in advance.Customer acknowledges and agrees that the amount billed and charged each month may vary depending on Customer's use of the Services and may include subscription fees for the remainder of Customer's applicable billing period and overage fees for the prior month.Foreign Transaction Fees. Customer acknowledges that for certain Credit Cards, the issuer of Customer's Credit Card may charge a foreign transaction fee or other charges.Invalid Payment. If a payment is not successfully settled due to expiration of a Credit Card, insufficient funds, or otherwise, Customer remains responsible for any amounts not remitted to BRNDBOT LLC and BRNDBOT LLC may, in its sole discretion, either (i) invoice Customer directly for the deficient amount, (ii) continue billing the Credit Card once it has been updated by Customer (if applicable) or (iii) terminate this Agreement.Changing Credit Card Information. At any time, Customer may change its Credit Card information by entering updated Credit Card information via the "Settings" page on the Dashboard.Termination of Recurring Billing. In addition to any termination rights set forth in this Agreement, Customer may terminate the Subscription Term by sending BRNDBOT LLC notice of non-renewal to email@example.com in accordance with Section 7.1 (Subscription Term and Renewals) or, if Customer's Subscription Term is on a monthly basis (or if otherwise permitted by BRNDBOT LLC), by terminating via the "Settings" page on the Dashboard, with termination effective at the end of the current Subscription Term. As set forth in Section 2.9 (Trial Subscriptions), if Customer does not enter into a paid Subscription Term following a Trial Period, this Agreement and Customer's right to access and use the Services will terminate at the end of the Trial Period and Customer's Credit Card will not be charged.Payment of Outstanding Fees. Upon any termination or expiration of the Subscription Term, BRNDBOT LLC will charge Customer's Credit Card (or invoice Customer directly) for any outstanding fees for Customer's use of the Services during the Subscription Term, after which BRNDBOT LLC will not charge Customer's Credit Card for any additional fees.
This Agreement is effective as of the Effective Date and expires on the date of expiration or termination of all Subscription Terms.
8.2. Termination for Cause.
Either party may terminate this Agreement (including all related Order Forms) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors' arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).
8.3. Effect of Termination.
Upon any expiration or termination of this Agreement, Customer will immediately cease any and all use of and access to all Services (including any and all related BRNDBOT LLC Technology) and delete (or, at BRNDBOT LLC's request, return) any and all copies of the Documentation, any BRNDBOT LLC passwords or access codes and any other BRNDBOT LLC Confidential Information in its possession. Provided this Agreement was not terminated for Customer's breach, Customer may retain and use internally copies of all reports exported from any Service prior to termination. Customer acknowledges that following termination it will have no further access to any Customer Data input into any Service, and that BRNDBOT LLC may delete any such data as may have been stored by BRNDBOT LLC at any time. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.
The following Sections will survive any expiration or termination of this Agreement: 2.7 (General Restrictions), 2.9 (Trial Subscriptions), 3.2 (Storage of Customer Data), 3.4 (Indemnification by Customer), 3.5 (Aggregated Anonymous Data), 6 (Ownership), 7.2 (Fees and Payment), 7.3 (Payment Via Credit Card), 8 (Term and Termination), 9 (No Warranty), 10 (Limitation on Liability), 11 (Indemnification), 12 (Confidential Information) and 15 (General Terms).
To the maximum extent permitted by law, we provide the Service as-is. This means that, except as expressly stated in this agreement, we don’t provide warranties, conditions, or undertakings of any kind in relation to the Service, either express or implied. This includes, but isn’t limited to, warranties of merchantability and fitness for a particular purpose, which are, to the fullest extent permitted by law, excluded from the Agreement. Since You may use the Service for a variety of reasons, we can’t guarantee that it will meet your specific needs.
BRNDBOT LLC EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY AND WILL NOT BE RESPONSIBLE FOR ANY DAMAGES OR LOSS CAUSED, OR ALLEGED TO BE CAUSED, BY YOUR USE OF THE SERVICES. THE EXCLUDED DAMAGES WILL INCLUDE, WITHOUT LIMITATION, DAMAGES RESULTING FROM FRAUD, EMBEZZLEMENT, THEFT, IDENTITY THEFT, OR INVASION OF PRIVACY.TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE BRNDBOT LLC AGGREGATE LIABILITY, COLLECTIVELY, FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE SUBSCRIPTION FEES ACTUALLY PAID BY YOU DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE INCIDENT OR $100.00 (USD), WHICHEVER IS GREATER. IN NO EVENT WILL BRNDBOT LLC HAVE ANY LIABILITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVER CAUSED, OR FOR ANY LOST PROFITS, LOSS OF USE, DATA OR OPPORTUNITIES, COST OF DATA RECONSTRUCTION, COST OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES OR THIRD PARTY OFFERINGS, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, EVEN IF BRNDBOT LLC, ITS LICENSORS OR SUBCONTRACTORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.THE FOREGOING EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
You agree to indemnify, defend, and hold harmless the BRNDBOT LLC from and against any and all third party claims alleged or asserted against any of them, and all related charges, damages and expenses (including, but not limited to, reasonable attorneys' fees and costs) arising from or relating to: (a) any actual or alleged breach by you, an Affiliate or End User of any provisions of this Agreement; (b) any access to or use of the Services by you, an Affiliate or End User; (c) any actual or alleged violation by you, an Affiliate or End User of the intellectual property, privacy or other rights of a third party; and (d) any dispute between you and another party regarding ownership of or access to Your Data.
A Party will not disclose or use any Confidential Information of the other Party except: (a) as reasonably necessary to perform its obligations or exercise any rights granted pursuant to this Agreement; (b) with the other Party's prior written permission; or (c) to the extent required by law or order of a court or other governmental authority or regulation. Each Party agrees to protect the other Party’s Confidential Information in the same manner that it protects its own Confidential Information of like kind, but in no event using less than a commercially reasonable standard of care. Confidential Information will not include any information that: (a) is or becomes generally known to the public without breach of any obligation owed to the disclosing Party; (b) was known to a Party prior to its disclosure by the other Party without breach of any obligation owed to the other Party; (c) was independently developed by a Party without breach of any obligation owed to the other Party; or (d) was or is received from a third party without breach of any obligation owed to the other Party. For clarity, nothing in this Section 13 will restrict BRNDBOT LLC with respect to BRNDBOT LLC Data or Aggregated Data.
At the request of BRNDBOT LLC, Customer agrees to the issuance of a joint press release ("Press Release") on a mutually agreed upon date or the 90th day from the Effective Date, whichever is earlier. Each party will have the right to approve the Press Release in advance, but such approval will not be unreasonably delayed or withheld. Customer also agrees to participate in other reasonable marketing activities that promote the benefits of the Services to other potential customers and to use of Customer's name and logo on BRNDBOT LLC's web site and in BRNDBOT LLC promotional materials. Customer agrees that BRNDBOT LLC may disclose Customer as a customer of BRNDBOT LLC.
You promise to follow these rules:You won’t send spam. By “spam,” we mean the definition on the Spamhaus website.
You are responsible for complying with all CAN-SPAM, CASL and all other laws pertaining to sending spam.You won’t use purchased, rented, or third-party lists of email addresses.You won’t violate our AUP, which is part of this Agreement. BRNDBOT LLC does not allow accounts with the primary purpose of promoting or inciting harm towards others or the promotion of discriminatory, hateful, or harassing content. To this end, we may suspend or terminate your account if you send an email campaign or any other messaging activity to People, submit an advertisement or otherwise distribute any content that we determine, in our sole discretion, contains either of the following:
A Threat of Physical Harm.
This means any statement, photograph, advertisement, or other content that in our sole judgment could be reasonably perceived to threaten, advocate, or incite physical harm to or violence against others.
This means any statement, image, photograph, advertisement, or other content that in our sole judgment could be reasonably perceived to harm, threaten, promote the harassment of, promote the intimidation of, promote the abuse of, or promote discrimination against others based solely on race, ethnicity, national origin, sexual orientation, gender, gender identity, religious affiliation, age, disability, disease, or immigration status. We also may suspend or terminate your account if we determine, in our sole discretion, that you are either:An organization which has publicly stated or acknowledged that its goals, objectives, positions, or founding tenets include statements or principles that could be reasonably perceived to advocate, encourage, or sponsor Hateful Content or A Threat of Physical Harm.A person that has publicly made a comment or statement, or otherwise publicly made known a position, including by membership in an organization as discussed above, that could be reasonably perceived as Hateful Content or A Threat of Physical Harm.
A person or organization that has acted in such a way as could be reasonably perceived to support, condone, encourage, or represent Hateful Content or A Threat of Physical Harm.
If you violate any of these rules, then we may suspend or terminate your account.
This Agreement will bind and inure to the benefit of each party's permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party's assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 17.1 will be null and void.
If any provision of this Agreement will be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in effect.
15.3. Governing Law; Dispute Resolution.
a) Direct Dispute Resolution. In the event of any dispute, claim, question, or disagreement arising from or relating to this Agreement, whether arising in contract, tort or otherwise, ("Dispute"), the parties shall first use their best efforts to resolve the Dispute. If a Dispute arises, the complaining party shall provide written notice to the other party in a document specifically entitled "Initial Notice of Dispute," specifically setting forth the precise nature of the dispute ("Initial Notice of Dispute"). If an Initial Notice of Dispute is being sent to BRNDBOT LLC it must be emailed to firstname.lastname@example.org and sent via mail to:
BRNDBOT LLC31 St. James Ave, Floor 6
Boston, MA 02116
Following receipt of the Initial Notice of Dispute, the parties shall consult and negotiate with each other in good faith and, recognizing their mutual interest, attempt to reach a just and equitable solution of the Dispute that is satisfactory to both parties ("Direct Dispute Resolution"). If the parties are unable to reach a resolution of the Dispute through Direct Dispute Resolution within thirty (30) days of the receipt of the Initial Notice of Dispute, then the Dispute shall subsequently be resolved by arbitration as set forth below.b) Arbitration.IN THE EVENT THAT A DISPUTE BETWEEN THE PARTIES CANNOT BE SETTLED THROUGH DIRECT DISPUTE RESOLUTION, AS DESCRIBED ABOVE, THE PARTIES AGREE TO SUBMIT THE DISPUTE TO BINDING ARBITRATION. BY AGREEING TO ARBITRATE, THE PARTIES AGREE TO WAIVE THEIR RIGHT TO A JURY TRIAL. The arbitration shall be conducted before a single neutral arbitrator, before AAA in Boston, Massachusetts. The arbitration shall be administered by AAA in accordance with this document with one addition: The limitation of one discovery deposition per side shall be applied by the arbitrator, unless it is determined, based on all relevant circumstances, that more depositions are warranted. The arbitrator shall consider the amount in controversy, the complexity of the factual issues, the number of parties and the diversity of their interests and whether any or all of the claims appear, on the basis of the pleadings, to have sufficient merit to justify the time and expense associated with the requested discovery. The arbitration will occur in Boston, Massachusetts, but the parties may choose to appear by person, by phone, by another virtual means, or through the submission of documents.The arbitrator will issue a ruling in writing. Any issue concerning the extent to which any dispute is subject to arbitration, the applicability, interpretation, or enforceability of this agreement shall be resolved by the arbitrator. To the extent state law is applicable, the arbitrator shall apply the substantive law of California.All aspects of the arbitration shall be treated as confidential and neither the parties nor the arbitrators may disclose the content or results of the arbitration, except as necessary to comply with legal or regulatory requirements. The result of the arbitration shall be binding on the parties and judgment on the arbitrator's award may be entered in any court having jurisdiction. The arbitrator shall award to the prevailing party, if any, the costs and attorneys' fees reasonably incurred by the prevailing party in connection with the arbitration.
c) Choice of Law and Jurisdiction. FOR ANY CLAIM WHICH IS NOT SUBJECT TO THIS DISPUTE RESOLUTION PROVISION, CUSTOMER AGREES TO SUBMIT AND CONSENT TO THE PERSONAL AND EXCLUSIVE JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE STATE AND FEDERAL COURTS LOCATED WITHIN SUFFOLK COUNTY, MASSACHUSETTS. IN ANY DISPUTE, MASSACHUSETTS LAW SHALL APPLY.
d) Construction and Joinder. THIS AGREEMENT MUST BE CONSTRUED AS IF IT WAS JOINTLY WRITTEN BY BOTH PARTIES. BOTH CUSTOMER AND BRNDBOT LLC AGREE THAT EACH MAY BRING OR PARTICIPATE IN CLAIMS AGAINST THE OTHER ONLY IN THEIR RESPECTIVE INDIVIDUAL CAPACITIES, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS. NO ARBITRATION OR CLAIM UNDER THIS AGREEMENT SHALL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF THE SERVICES, AND NO CLASS ARBITRATION PROCEEDINGS SHALL BE PERMITTED. IN THE EVENT OF ANY DISPUTE CONCERNING THE VALIDITY OR ENFORCEABILITY OF THIS PROVISION, SUCH CLAIM MUST BE ADJUDICATED BY A COURT AND NOT BY AN ARBITRATOR.
e) Injunctive Relief. Notwithstanding the above provisions, BRNDBOT LLC may apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
Any notice or communication required or permitted under this Agreement will be in writing to the parties at the addresses set forth on the Order Form or at such other address as may be given in writing by either party to the other in accordance with this Section and will be deemed to have been received by the addressee (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail.
Waivers. Except as otherwise provided herein, no supplement, modification, or amendment of this Agreement will be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.
15.6. Entire Agreement.
This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Customer acknowledges that the Services are on-line, subscription-based products, and that in order to provide improved customer experience BRNDBOT LLC may make changes to the Services. The support and service level availability terms described in the Terms may be updated from time to time upon reasonable notice to Customer to reflect process improvements or changing practices (but the modifications will not materially decrease BRNDBOT LLC's obligations as compared to those reflected in such terms as of the Effective Date).
15.7. Force Majeure.
Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events that occur after the signing of this Agreement and that are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
BRNDBOT LLC may use the services of subcontractors and permit them to exercise the rights granted to BRNDBOT LLC in order to provide the Services under this Agreement, provided that BRNDBOT LLC remains responsible for (i) compliance of any such subcontractor with the terms of this Agreement and (ii) for the overall performance of the Services as required under this Agreement.
Nothing in this Agreement prevents BRNDBOT LLC from disclosing Customer Data to the extent required by law, subpoenas, or court orders, but BRNDBOT LLC will use commercially reasonable efforts to notify Customer where permitted to do so.
15.10. Independent Contractors.The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party's behalf without the other party's prior written consent
15.11. Export Control.
In its use of the Services, Customer agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (i) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a "terrorist supporting" country, (ii) Customer will not (and will not permit any of its users to) access or use the Services in violation of any U.S. export embargo, prohibition or restriction, and (iii) Customer will not submit to the Services any information that is controlled under the U.S. International Traffic in Arms Regulations
15.12. Government End-Users.
Elements of the Services are commercial computer software. If the user or licensee of the Services is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Services, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. All Services were developed fully at private expense. All other use is prohibited
This Agreement may be executed in counterparts, each of which will be deemed an original and all of which together will be considered one and the same agreement.