terms/

 

This Brandcast Terms of Service constitutes a legally binding agreement between you (“you” or “Subscriber”) and Brandcast, Inc., a Delaware Corporation (“we” or “Brandcast”) governing your use and access to www.brandcast.com and Brandcast’s mobile applications (collectively the “Platform”) and the software and services made available through the Platform (collectively the “Services”).

By accessing or using any part of the Platform or initiating any transaction on the Platform, you agree to be bound by this Agreement.

This Agreement includes provisions for binding arbitration on an individual basis –which includes a waiver of a right to a jury trial or a right to file a class action.

Internet technology, and the applicable laws, rules and regulations change frequently. We reserve the right to make changes to this Agreement at any time.  Continued access and/or use of the Platform in any manner constitutes assent to any new Agreement that may be posted on the Platform.

Definitions.  The following terms shall be capitalized throughout this Agreement and shall be defined as follows:

a.  Cloud Integration Services. The term “Cloud Integration Services” refers to third party design, marketing, and analytic cloud services offered by Brandcast for integration within Subscriber’s Website(s) as part of the Services.

b.  Content.  The term “Content” shall mean any and all text, data, code, software, graphics, information, images, audio, visual or audiovisual combinations or other materials submitted, uploaded, imported, communicated or exchanged to facilitate the provision of Services under this Agreement.

c.  Subscriber Content. The term “Subscriber Content” refers to any Content submitted, uploaded, imported, integrated, communicated or exchanged to the Platform by Subscriber, including any user-generated Content.

d.  Subscriber Client. The term “Subscriber Client” refers to a client of Subscriber on whose behalf Subscriber is utilizing and/or managing the Services.

e.  Brandcast Trademarks.  The term “Brandcast Trademarks” shall mean any trademarks, service marks, design marks, symbols, logos and/or other indicia of source owned or used under license by Brandcast, and all goodwill associated therewith.

f.  Subscriber and/or Subscriber’s Client’s Trademarks. The term “Subscriber and/or Subscriber’s Client’s Trademarks” shall mean any trademarks, service marks, design marks, symbols, logos and/or other indicia of source owned or used under license by Subscriber and/or Subscriber’s Client, and all goodwill associated therewith.

g.  Properties.  The term “Properties” refers collectively to Subscriber Content and Subscriber and/or Subscriber’s Client’s Trademarks.

h.  Website(s). The term “Website(s)” means a collection of related Web Page(s) under a unique Subdomain, Root Domain, and Top Level Domain combination.  (By way of example, in the Website address www.brandcast.com, "www" is the "Subdomain", "brandcast" is the "Root Domain", and "com" is the "Top Level Domain").

i.  Web Page.  The term “Web Page” means a document accessible on the internet via a common Subdomain, Root Domain, and Top Level Domain combination. (By way of example, blog.brandcast.com, blog.brandcast.com/page1, and blog.brandcast.com/page2 are separate Web Pages located at the Website blog.brandcast.com.)

Eligibility. To be eligible to use the Platform and Services, you must be at least 18 years of age or have the power to enter into legally binding contracts in your country of residence.

End User License Agreement (“EULA”). Brandcast hereby grants you a limited, non-exclusive, non-sublicensable, non-transferable, non-assignable, revocable license to access and utilize the Services in Brandcast’s sole and absolute discretion. Brandcast’s EULA excludes any Cloud Integration Services incorporated by Subscriber in connection with Subscriber’s access and use of the Services.  Subscriber’s license to integrate such Cloud Integration Services is subject to the terms and conditions imposed by each third party service selected by Subscriber.

Content and Trademark License. Subscriber and Subscriber’s Client shall retain all right, title and license in the Website(s) and Properties.  Subscriber hereby grants to Brandcast a non-exclusive, royalty-free, fully paid-up, worldwide right and license to collect, process, store, host, copy, transmit, display, modify, and create derivative works of any and all Website(s) and Properties in all media now known or hereinafter created, for (a) purposes of providing the Services during the Subscription Term.

Idea Submissions License. We consider any suggestions, ideas, proposals or other material submitted by users, whether solicited or unsolicited, (collectively, the "Material") to be non-confidential and non-proprietary.  We shall not be liable for the disclosure, use or exploitation of such Material. You hereby grant to Brandcast a worldwide, non-exclusive, perpetual, irrevocable, royalty-free and transferable right and license to incorporate, use, publish and exploit the Material for any purpose whatsoever, commercial or otherwise, without compensation or accounting.

Use Restrictions. Subscriber will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services.   You will not make the Services available for the benefit of any third party, or sell, resell, license, sublicense, distribute, rent or lease the Services to any third party for any purpose, commercial or otherwise.

Back Up Data Responsibility. Brandcast will use good faith efforts to backup data periodically.  Backups are intended for internal use to attempt to quickly restore a website; however we cannot guarantee that a backup will be available for restore upon your request. It is your responsibility to backup all Subscriber Content in order to prevent potential data loss.

DMCA - Notice of Claimed Infringement If you have a good faith belief that your copyright has been infringed, you can download and submit a Notice of Claimed Infringement to the Platform’s Designated Agent as follows:

By Mail:  Brandcast Designated Agent, 842 Folsom Street, San Francisco, CA 94107 By email:  legal@brandcast.com

Privacy.  We respect your privacy and will only use personal information in accordance with our Privacy Policy.

Compliance with Applicable Laws.  Subscriber shall comply with any and all applicable U.S. state and federal and international laws, rules and regulations implicated by your use of the Services. SUBSCRIBER SHALL BE SOLELY RESPONSIBLE FOR PROVIDING TO SUBSCRIBER’S CLIENTS THE IDENTITY AND PERTINENT INFORMATION AS TO ANY AND ALL CLOUD INTEGRATION SERVICES INCORPORATED WITHIN WEBSITES FOR PURPOSES OF ENABLING SUBSCRIBER’S CLIENTS TO ADEQUATELY DISCLOSE SUCH CLOUD INTEGRATION SERVICES IN SUBSCRIBER’S CLIENT’S APPLICABLE PRIVACY POLICY.

Export Control. Services may be subject to export laws and regulations of the United States and other jurisdictions.  Subscriber represents that it is not named on any U.S. government denied-party list.   Subscriber shall not permit access or use any Services in a U.S. embargoed country (currently Cuba, Iran, North Korea, Sudan, Syria or Crimea) or in violation of any U.S. export law or regulation.

Objectionable Content. We are not responsible for, and do not endorse, any Content posted on the Platform.  We do not have any obligation to prescreen, monitor, edit or remove any Content. We shall not be liable for any damage or harm resulting from any Content or your interactions with other users on the Platform. We reserve the right, but have no obligation, to take any action to restrict or remove access to any Content that we deem, in our sole and absolute discretion, to be a violation of this Agreement.

13. Prohibited Conduct.  In your use of the Platform and Services, you may not:

- Violate any law, statute, ordinance or regulation;

- Infringe upon any patent, copyright, trademark, trade secret, right of publicity or other third party rights;

- Attempt to use another user’s account, impersonate another person or entity, misrepresent your affiliation with a person or entity, or create or use a false identity;

 

- Distribute or transmit any code, virus or any other technologies, whether now known or yet to be developed, that may harm the Platform or its users;

- Modify, adapt or hack the Platform or modify another Platform or mobile application so as to falsely imply that it is associated with the Platform;

- Distribute or post spam, unsolicited or bulk electronic communications to Platform users;

- Use any robot, spider, scraper or other automated means to access the Platform for prohibited or illegal purposes;

Take any action that imposes, or may impose, an unreasonable or disproportionately large load on the Platform ’s infrastructure;

- Interfere or attempt to interfere with the proper working of the Platform, its services or tools; or

- Bypass the Platform ’s robot exclusion headers or other measures we may use to prevent or restrict access to the Platform.

14. Representations and Warranties. By uploading, submitting and integrating the Properties in connection with your use of the Services, you represent and warrant that:

a. Proprietary Rights: You have all right, title, license and authority to upload, submit and integrate the Properties, including the right to publish and distribute by electronic and digital means; and b. Non-Infringing: The Properties do not (i) violate, infringe or misappropriate on the rights associated with any third parties, including, but not limited to, privacy rights, copyright, trademark, trade secrets, patents or other intellectual property rights of any third party, or (ii) violate any statute, law, ordinance or regulation.

15. Customer Questions. Customer questions may be directed by email to questions@brandcast.com to address any issues you may have regarding your use of the Platform.  Most concerns can be quickly resolved in this matter.  

16. Arbitration.

Binding Arbitration. EXCEPT AS OTHERWISE STATED HEREIN, any claim or controversy with Brandcast arising out of or relating to the Platform, Services and/or this Agreement (including its formation, interpretation, performance and breach) shall be settled by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, excluding any rules or procedures governing or permitting class actions. Any judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.  The Federal Arbitration Act shall govern the interpretation and enforcement of this Agreement.

ANY ARBITRATION UNDER THIS AGREEMENT WILL BE ON AN INDIVIDUAL BASIS ONLY.  THE PARTIES EXPRESSLY WAIVE THEIR RIGHT TO FILE OR JOIN A CLASS ACTION OR PRIVATE ATTORNEY GENERAL ACTION, OR TO CONSOLIDATE THEIR ARBITRATION WITH OTHER ARBITRATIONS.  YOU ARE WAIVING YOUR RIGHTS TO HAVE YOUR CASE DECIDED BY A JUDGE OR JURY.  IF ANY PROVISION OF THIS ARBITRATION AGREEMENT IS FOUND UNENFORCEABLE, THE UNENFORCEABLE PROVISION SHALL BE SEVERED AND THE REMAINING PROVISIONS SHALL REMAIN ENFORCEABLE.

The AAA’s rules, as well as forms for initiating arbitration proceedings, are available at www.adr.org.  When initiating a request to arbitrate with the AAA, you must also send a copy of the completed form to: legal@brandcast.com

Exception – Small Claims Court Claims. Notwithstanding the parties’ agreement to resolve all disputes through arbitration, either party may seek relief in small claims courts for disputes or claims within the scope of that court’s jurisdiction.

17. The Platform ’s Intellectual Property       a. Copyrights. The Platform ’s logos, design, text, graphics, and other files, and the selection arrangement and organization thereof, are owned by Brandcast. 2017 Brandcast, Inc.  ALL RIGHTS RESERVED.       b. Trademarks:  The Platform and its logos, page headers, custom graphics, button icons and scripts are     trademarks or trade dress of Brandcast.      c. Ownership and Use:  Unless otherwise stated herein, nothing in this Agreement or your use of the Platform and Services gives you a right or license to use any of our copyrights, trade names, trademarks, service marks, logos, domain names, or any other intellectual property rights.

18. DISCLAIMER OF WARRANTIES:  TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PLATFORM AND ALL INFORMATION, CONTENT, MATERIALS, PRODUCTS, AND SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE PLATFORM, INCLUDING ANY “BETA” RELEASES, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.  BRANDCAST DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM, ITS SERVICES OR USE (I) WILL BE UNINTERRUPTED, TIMELY OR SECURE, (II) WILL BE FREE OF DEFECTS, INACCURACIES OR ERRORS, (III) WILL MEET YOUR REQUIREMENTS, OR (IV) WILL OPERATE IN THE CONFIGURATION OR WITH OTHER HARDWARE OR SOFTWARE YOU USE. EXCEPT WHERE PROHIBITED BY LAW, BRANDCAST EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT AND WILL NOT BE LIABLE FOR YOUR USE OF OR RELIANCE ON THE PLATFORM, INFORMATION, CONTENT, MATERIALS, PRODUCTS, AND SERVICES.

19. LIMITATION OF LIABILITY.  YOU EXPRESSLY AGREE THAT YOUR USE OF THE PLATFORM AND SERVICES IS AT YOUR SOLE RISK. TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER BRANDCAST NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE CONTENT, PLATFORM OR SERVICES WILL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES FOR LOST PROFITS, SECURITY BREACH, LOST DATA OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO OR CONNECTED WITH THE USE OF THE PLATFORM OR ITS SERVICES, EVEN IF BRANDCAST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.   TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL BRANDCAST’S AGGREGATE LIABILITY, OR THAT OF ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF, OR OF THE INABILITY TO USE, THE PLATFORM OR SERVICES, EXCEED $1000.00 OR THE FEES PAID TO BRANDCAST IN THE THREE (3) MONTHS PRIOR TO THE EVENT GIVING RISE TO YOUR CLAIM, WHICHEVER IS GREATER.

20. INDEMNITY.  To the maximum extent permitted by law, Subscriber agrees to indemnify, defend and hold harmless Brandcast, and its subsidiaries, affiliates, officers, directors, shareholders, employees, representatives, agents, volunteers, attorneys, managers, licensors, business partners and each of their respective successors and assigns (the “Indemnified Parties”) from and against all damages, losses, liabilities, claims, expenses, fees or costs (including, without limitation, reasonable attorneys’ fees and costs) incurred in connection with any claim, demand or action brought or asserted against any of the Indemnified Parties arising out of or relating to Subscriber’s (i) use of the Platform, Content and Services (ii) breach of this Agreement, (iii) violation of any third party right, including without limitation any intellectual property right, publicity, property or privacy right, and/or (iv) a breach of Subscriber’s representations and warranties under this Agreement.

21. RELEASE.  With regard to any dispute between Subscriber and any other third party relating to your use of the Services, you hereby release Brandcast, and its subsidiaries, affiliates, officers, directors, shareholders, employees, representatives, agents, volunteers, attorneys, managers, licensors, business partners and each of their respective successors and assigns, from all claims, demands, causes of action, liabilities, legal fees and costs, and damages (actual or consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”

22. Force Majeure. Brandcast will not be liable or responsible for any delays in providing the Services, or for failing to provide the Services, as a result of any event beyond its reasonable control, including, without limitation, adverse weather conditions, internet outage or interruption of service, telecommunications or power outage, fire, flood, civil disobedience, labor disruptions, strikes, lockouts, freight, embargoes, terrorism, natural disaster, war or acts of God.  

23. No Agency. No agency, partnership, joint venture, employee-employer, or franchiser-franchisee relationship is intended or created by this Agreement.

24. Severability. The validity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement.  

25. Modifications. Our employees, volunteers or agents are not authorized to vary this Agreement. No modification of this Agreement shall be effective unless it is in writing and either signed by an authorized representative of Brandcast or posted on the Platform.

26. Choice of Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of California, without regard to or application of California’s conflict of law principles.  The parties consent to the jurisdiction of the State of California, and venue in the County of San Francisco, with regard to any controversy or claim arising out of or relating to this Agreement, or the breach thereof

27. Assignment. You shall not assign any of the rights or obligations under this Agreement without the prior written consent Brandcast, which consent shall not unreasonably be withheld.  Brandcast may at any time assign, transfer or subcontract any or all of its rights or obligations under this Agreement without your consent.

28. Successors and Assigns. This Agreement is binding on and inures to the benefit of the parties and their respective successors and permitted assigns.

29. No Waiver. No failure or delay by a party exercising any right, power or privilege under this Agreement will operate as a waiver thereof.

30. Interpretation. Headings are for reference purposes only and do not limit the scope or extent of such section.

31. Notices. All notices required or permitted to be given under this Agreement will be in writing and delivered to:  Brandcast at 842 Folsom Street, San Francisco, CA 94107 or by email at legal@brandcast.com.  All notices will be sent to you by email or will be conspicuously posted on the Platform.

32. Entire Agreement. This Agreement comprises the entire agreement between the parties and supersedes all prior or contemporaneous agreements, written or oral, between the parties regarding the subject matter contained herein.

33. Complaints - California Residents. If you are a California resident, in accordance with California Civil Code Section 1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Affairs of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.

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