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This Brandcast Master Subscription Services Agreement (“Agreement”) is entered into by and between Brandcast, Inc., a Delaware corporation (“we” or “Brandcast”) and the Subscriber identified in the Services Order Form (“you” or “Subscriber”) effective as of the Effective Date of the Service Order Form. Brandcast and Subscriber shall individually be referred to as a “Party” and collectively as the “Parties.”
In consideration of the mutual representations, warranties, and covenants herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
The following terms shall be capitalized throughout this Agreement and shall be defined as follows:
The term “Authorized Users” refers to all individuals in the Subscribing Department specified in the Order Form and authorized by Subscriber to access and use the Services.
The term “Brandcast Platform” or “BP” refers to the interface and associated software allowing an Authorized User of the BP to create, modify, and publish Websites including the ability to alter the design, structure, and styling of Websites.
Brandcast Salesforce App
The term “Brandcast Salesforce App” or “BSA” refers to the interface and associated software integrated with the core platform operated by Salesforce.com, Inc. and which allows an Authorized User of the BSA to generate Websites from pre-designed templates.
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.
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.
The term “Subscriber Content” refers to any Content submitted, uploaded, imported, integrated, communicated or exchanged through the Platform by Subscriber, including any user-generated Content.
The term “Subscriber Client” refers to a client of Subscriber on whose behalf Subscriber is utilizing and/or managing the Services.
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.
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.
The term “Properties” refers collectively to Subscriber Content and Subscriber and/or Subscriber’s Client’s Trademarks.
The term “Platform” refers to software and software services owned and operated by Brandcast, and Brandcast’s mobile applications, including the BP.
The term “Seat” means a unique login identification and password combination for accessing specific Services. An individual Seat must be uniquely assigned to no more than one (1) Authorized User.
The term “Services” means one (or a combination) of the BP, the BSA, and any other software or creative services which may be specified on the Order Form and are hosted or managed by Brandcast.
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").
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.)
The term “Order Form” refers to the attachment identified as “Exhibit A-_” to this Agreement that is mutually agreed to in writing by the parties and contains additional terms that are incorporated by reference into this Agreement.
Pursuant to this Agreement, the Parties may mutually agree upon specific Services on the Platform to be provided by Brandcast to Subscriber as further specified within any Order Form. The terms of any Order Form shall be incorporated by reference as though fully set forth herein and shall be sequentially numbered as follows: Exhibit A-1, Exhibit A-2, etc. To the extent the Order Form provides conflicting terms to this Agreement, the terms of the Order Form shall prevail.
Access by Subscriber and its Authorized Users shall be subject to the terms and conditions of this Agreement. Authorized Users of a specific Service are not permitted to use other Services unless otherwise specified in an Order Form. Subscriber shall be responsible for maintaining the confidentiality and security of account login information.
Brandcast hereby grants Subscriber a limited, non-exclusive, non-sublicensable, non-transferable, non-assignable (except as permitted pursuant to Section 21(f)), worldwide revocable license to access and utilize the Services pursuant to the terms of the Order Form.
This EULA grants Subscriber the right to access and utilize the Services only for the number of Website(s) and page views applicable to the subscription plan designated in the Order Form.
Subscriber shall use commercially reasonable efforts to prevent unauthorized access to or use of the Services and notify Brandcast promptly of any such unauthorized access or use.
Cloud Integration Services Exclusion
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.
Subscriber shall designate a BP Authorized User to be the administrator (the “BSA Seat Administrator”) for all BSA Authorized Users. Brandcast will provide BP Authorized Users and the BSA Seat Administrator with the BP Support Levels described in Exhibit B and provide the BP Services in compliance with the terms of the BP Service Level Agreement set forth in Exhibit C. The BSA Seat Administrator shall be responsible for providing support to BSA Authorized Users.
All right, title, and interest in the Platform (and its component parts) and in any ideas, know-how, code, derivative works or intellectual property rights (i) associated therewith or (ii) which result from the provision of Services, including without limitation any enhancements or modifications made to the Platform, shall at all times remain solely and exclusively the property of Brandcast or its licensors. Subscriber shall take no action inconsistent with such title. Subscriber and/or Subscriber’s Client shall retain all right, title and interest in the Website(s) and Properties.
Subscriber hereby grants to Brandcast a non-exclusive, royalty-free, fully paid-up, non-assignable (except as permitted pursuant to Section 21(f)), worldwide right and license to collect, process, store, host, copy, transmit, and display any and all Website(s) and Properties in all media now known or hereinafter created, for purposes of providing the Services during the Subscription Term.
Subscriber shall pay to Brandcast the Subscription and other service fees as specified in the Order Form. Payment of all fees shall be due as specified in the Order Form pursuant to the payment terms and method selected in the applicable Order Form.
Brandcast may suspend or terminate services for payments that are more than thirty (30) days past due. Past due payments will accrue interest at the greater of 1.5% monthly or the highest interest rate allowable under applicable law.
Subscriber is responsible for paying any applicable governmental sales, use, value-added, commodity, harmonized and other taxes imposed on the purchase or use of the Subscription Services. To the extent Brandcast is required to collect such taxes, the applicable tax will be added to Customer’s billing account.
The term of this Agreement will commence on the Effective Date and shall continue for the periodic Subscription Term identified in the applicable Order Form, and any renewal thereof (“Subscription Term”), unless earlier terminated pursuant to the terms of this Agreement.
Except in the event of a material, uncured breach by Brandcast, Subscriber shall be responsible for all fees for the entire Subscription Term. Fees will not be prorated upon cancellation and/or termination and all fees paid through the date of termination are nonrefundable.
Except as otherwise specified in the Order Form, Services will automatically renew for subsequent periodic terms equal to the expiring Subscription Term, unless either Party provides written notice of non-renewal at least sixty (60) days before the end of the applicable Subscription term. The fees for the automatic renewal term will be the same as that during the immediately prior term (exclusive of initial discounts or fees for optional upgrades, additional products, licenses or integrations over and above the base Services rate) unless Brandcast provides prior written notice of a fee increase at least ninety (90) days before the end of the applicable Term.
Brandcast may increase the Services fees by an amount not to exceed the greater of: (a) 5% or (b) Consumer Price Index for all Urban Consumers (CPI-U), U.S. City Average, All Items. Brandcast shall provide written notice of its intent to increase the Services fees, along with the amount of any such proposed increase, no later than one ninety (90) days prior to the expiration of the Initial, or any Renewal, Term.
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. Subscriber 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.
Brandcast will use good faith efforts to backup data periodically. Backups are intended for internal use to attempt to quickly restore a website; however, Brandcast cannot guarantee that a backup will be available for restore upon Subscriber’s request. Subscriber shall be responsible for backing up all Subscriber Content in order to prevent potential data loss.
In utilizing the Services, Brandcast may have access to Subscriber’s confidential and proprietary Content (“Confidential Information”). To the extent such Confidential Information is disclosed to Brandcast:
Brandcast shall not disclose any Confidential Information to any third party for any reason without Subscriber’s prior written consent, other than its employees or agents who have a need to know about such information in order to provide the Services.
In the event Brandcast is requested or required by legal process to disclose any of the Confidential Information, Brandcast shall give Subscriber prompt notice so that Subscriber may seek a protective order or other appropriate relief prior to any such disclosure. In the event that such protective order is not obtained, Brandcast shall disclose only that portion of the Confidential Information that its legal counsel advises that it is legally required to disclose, and shall work with the owner of such Confidential Information to minimize the extent and effect.
Safeguarding Confidential Information
Brandcast agrees to protect the security of Confidential Information according to all applicable laws and regulations, by commercially acceptable standards, and no less rigorously than it protects its own confidential information, but in no case less than reasonable care. Brandcast will implement, maintain and use appropriate administrative, technical and physical security measures to preserve the confidentiality, integrity, and availability of the Confidential Information.
Brandcast is not responsible for, and does not endorse, any Subscriber Content posted on the Platform. Brandcast does not have any obligation to prescreen, monitor, edit or remove any Subscriber Content. Brandcast shall not be liable for any damage or harm resulting from the uploading, posting or submission of any Subscriber Content.
Each Party shall comply with any and all applicable privacy laws and regulations relating to the collection, use, transfer, disclosure and/or storage of personal information arising from or relating to the provision and/or use of the Services. Brandcast certifies that it understands the restrictions relating to Personal Information shared by Subscriber and shall comply with the obligations set forth in the CCPA Addendum attached hereto as Exhibit D and as otherwise required under applicable law.
By Subscriber: Subscriber represents and warrants that
By Brandcast: Brandcast represents and warrants that
By Both Parties: Each Party represents and warrants that
Services may be subject to export laws and regulations of the United States and other jurisdictions. Each Party 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.
This Agreement shall automatically terminate upon the bankruptcy or insolvency of either Party.
Either Party may terminate this Agreement if the other Party breaches any material provisions of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of such breach.
Effect of Termination
During the thirty (30) day period following termination or expiration of the Subscription Term, Brandcast will, upon Subscriber Request, grant Subscriber access to the Services for the sole purpose of permitting Subscriber to retrieve Subscriber Content. After expiration of the thirty (30) day period, Brandcast shall, without liability or obligation of further notice to Subscriber, delete Subscriber’s Account and Subscriber Content.
The following Sections survive termination of this Agreement: Individual Binding Arbitration, Intellectual Property, Content and Trademark License, Confidentiality & Non-Disclosure, Disclaimer of Warranties, Indemnity, Limitation of Liability, and Governing Law.
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. The AAA’s rules, as well as forms for initiating arbitration proceedings, are available at www.adr.org.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PLATFORM AND ALL INFORMATION, CONTENT, MATERIALS, PRODUCTS, AND SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO SUBSCRIBER 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, INFORMATION, CONTENT, MATERIALS, PRODUCTS, AND SERVICES (I) WILL BE UNINTERRUPTED, TIMELY OR SECURE, (II) WILL BE FREE OF DEFECTS, INACCURACIES OR ERRORS, (III) WILL MEET SUBSCRIBER’S REQUIREMENTS, OR (IV) WILL OPERATE IN THE CONFIGURATION OR WITH OTHER HARDWARE OR SOFTWARE SUBSCRIBER 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 AND MERCHANTABILITY AND WILL NOT BE LIABLE FOR SUBSCRIBER’S USE OF OR RELIANCE ON THE PLATFORM, INFORMATION, CONTENT, MATERIALS, PRODUCTS, AND SERVICES.
BRANDCAST DISCLAIMS ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS, AND CONDUCT OF ANY THIRD PARTIES IN CONNECTION WITH OR RELATED TO SUBSCRIBER’S USE OF THE PLATFORM, INFORMATION, CONTENT, MATERIALS, PRODUCTS, AND SERVICES. BRANDCAST DOES NOT CONTROL ANY THIRD-PARTY LINKS, SERVICES, GOODS, RESOURCES AND INFORMATION ON THE PLATFORM.
EXCEPT WITH RESPECT TO (I) THE PARTIES’ INDEMNIFICATION OBLIGATIONS HEREIN AND (II) A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT, NEITHER PARTY WILL BE LIABLE TO THE OTHER 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 THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. EXCEPT WITH RESPECT TO (III) THE PARTIES’ INDEMNIFICATION OBLIGATIONS HEREIN AND (IV) A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED THE FEES PAID BY SUBSCRIBER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.
Brandcast agrees to defend Subscriber 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 "Subscriber Indemnified Parties") and to pay (1) any damages award issued by a court of competent jurisdiction against the Subscriber Indemnified Parties, and (2) direct expenses, including reasonable attorneys' fees (but excluding any lost revenues, lost profits or other consequential economic damages of Subscriber Indemnified Parties) arising out of or relating to a third party claim that the Services infringe another person's U.S. patent, copyright, trade secret or trademark. Brandcast will not have liability, and Subscriber will defend Brandcast and pay any damages awarded against the Brandcast Indemnified Parties and direct expenses, including reasonable attorneys' fees (but excluding any lost revenues, lost profits or other consequential economic damages of the Brandcast Indemnified Parties), to the extent the claimed infringement is based on or results in any material part from (i) any use by Subscriber of the Platform, Services and/or Content other than in accordance with Brandcast's published instructions, (ii) any unauthorized modification or alteration of the Platform, Services or Content by Subscriber, (iii) any combination or use of the Platform, Services and/or Content by Subscriber with any other product or system or technologies not supplied by Brandcast, (iv) Brandcast's compliance with Subscriber's design or specifications, (v) Subscriber's use of any Cloud Integration Services, and/or (vi) any refusal by Subscriber to accept or use suitable modified or replacement Platform, Services and/or Content provided by Brandcast to avoid infringement.
Subscriber agrees to defend 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 "Brandcast Indemnified Parties") and to pay (1) any damages award issued by a court of competent jurisdiction against the Brandcast Indemnified Parties, and (2) direct expenses, including reasonable attorneys' fees (but excluding any lost revenues, lost profits or other consequential economic damages of the Brandcast Indemnified Parties) arising out of or relating to a third party claim that Subscriber's Content infringes another person's U.S. patent, copyright, trade secret or trademark. Subscriber will not have liability for, and Brandcast will defend the Subscriber Indemnified Parties against, and pay any damages awarded against the Subscriber Indemnified Parties and direct expenses, including reasonable attorneys' fees (but excluding any lost revenues, lost profits or other consequential economic damages of the Brandcast Indemnified Parties) to the extent the claimed infringement is based on or results in any material part from any Content supplied by Brandcast.
The Parties’ obligations under this Section will be conditioned upon the affected Party promptly notifying the other in writing of the existence of any such claim, giving the Indemnifying Party full authority to conduct the defense and settlement of the claim, at the Indemnifying Party’s expense and with counsel of the Indemnifying Party’s selection, and cooperating fully with such counsel.
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, denial of service attacks, fire, flood, civil disobedience, labor disruptions, strikes, lockouts, freight, embargoes, terrorism, natural disaster, war or acts of Godv.
No agency, partnership, joint venture, employee-employer, or franchiser-franchisee relationship is intended or created by this Agreement.
The validity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement.
No modification of this Agreement shall be effective unless it is in writing and signed by an authorized representative of each Party.
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.
Neither Party shall assign any of the rights or obligations under this Agreement without the prior written consent of the other Party, which consent shall not unreasonably be withheld. However, consent is not required for an assignment of this Agreement in connection with a change of control, merger, stock transfer, sale or other disposition of substantially all the assets of the assigning Party’s business.
Successors and Assigns
This Agreement is binding on and inures to the benefit of the Parties and their respective successors and permitted assigns.
No failure or delay by a Party exercising any right, power or privilege under this Agreement will operate as a waiver thereof.
Headings are for reference purposes only and do not limit the scope or extent of such section.
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 and Subscriber at the billing address on the Order Form or as otherwise specified in writing by Subscriber.
This Agreement may be executed in two or more counterparts, each of which shall constitute an original and all of which shall be deemed a single agreement.
Either Party may execute this Agreement electronically or with either a manual or digital signature. “Digital signature" means an electronic identifier that is intended by the Party using it to have the same force and effect as the use of a manual signature. A signed copy of this Agreement delivered via facsimile or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original executed copy of this Agreement.
This Agreement and the Order Form 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.
Brandcast provides BP customer support during the standard business hours of Monday–Friday (8:00AM–6:00PM Pacific Time). All issues shall be supported during standard business hours. Support will not be available on weekends and certain U.S. holidays.
Subscribers may submit support inquiries 24 hours per day, 7 days per week either through Brandcast’s online chat application within the Brandcast Platform, or by email at email@example.com, or through the support link at www.brandcast.com. Brandcast’s online knowledgebase, including frequently asked questions can be found at support.brandcast.com 24 hours per day, 7 days per week.
Brandcast commits to make reasonable commercial efforts to respond to Subscriber inquiries within 24 business hours following receipt of inquiry. Target resolution times for support inquiries are based on severity level as follows:
Target Resolution Times
Severity 1 (Critical Severity)
Halts Subscriber’s business operations and no procedural workaround exists.
Four (4) business hours from when a support ticket/inquiry is received by Brandcast.
Severity 2 (High Severity)
High impact to portions of Subscriber’s business operations and no procedural workaround exists.
One (1) business day from when a support ticket/inquiry is received by Brandcast.
Severity 3 (Medium Severity)
Medium-to-low impact on Subscriber’s business, but Subscriber’s business continues to function, including by using a procedural workaround.
Five (5) business days from when a support ticket/inquiry is received by Brandcast, which may include a procedural workaround to address the issue.
Severity 4 (Low Severity)
Low-to-no impact on Subscriber’s business or the performance or functionality of the service.
No specific target resolution time, but may include a procedural workaround to address the issue.
This BP Service Level Agreement (“SLA”) details the service level targets associated with the Brandcast Platform (“BP”). As of the Effective Date, the BP is hosted on Amazon Web Services (“AWS”). The SLA applies only to the systems environment within AWS’s data center facilities (or any alternative data center facilities) which are operated for the benefit of the BP.
Subject to the terms of this SLA, Brandcast will provide the BP at 99.9% Availability each calendar month (the “Uptime Commitment”) as defined below.
The availability of the BP for a given month will be calculated according to the following formula (referred to herein as the “Availability”), where: total minutes in the month= TMM; total minutes in month unavailable = TMU; and: Availability = ((TMM-TMU) x 100)/TMM.
The BP will not be deemed unavailable for any downtime or outages excluded from such calculation by reason of the exceptions set forth below in this SLA.
The Brandcast Salesforce App (“BSA”) is subject to the SLAs set forth by salesforce.com. Brandcast makes no representations or warranties with respect to the availability of the BSA due to changes or updates made by salesforce.com to the salesforce.com platform or services.
The BP will not be considered to be unavailable for any outage that results from any maintenance performed by Brandcast of which Subscriber is notified at least 24 hours in advance and will last for no more than one (1) hour in duration (“Planned Maintenance”), provided that Brandcast will not perform Planned Maintenance (i) more frequently than twice per month or (ii) during normal business hours.
The BP will not be considered unavailable for any outage caused by (i) Subscriber content deployed on the BP or Subscriber application programming, (ii) acts or omissions of Subscriber or its agents, (iii) failures of software, equipment or facilities provided by Subscriber (for example, third party services deployed or integrated with the BP), (iv) network unavailability or bandwidth limitations outside of the BP; (v) factors outside of Brandcast’s reasonable control, including any Force Majeure events, denial-of-service attacks on Subscriber’s Websites or systems, Subscriber’s internet access, or issues with the underlying AWS services beyond the demarcation point of the BP.
The BP will not be considered unavailable for browser or domain name system caching that may make Subscriber's Website pages appear inaccessible to some viewers when others can still access them.
This SLA provides Subscriber's sole and exclusive remedy for Brandcast’s failure to provide the Brandcast Managed Service Offerings or meet the Uptime Commitment. All commitments are subject to the limitations and exclusions set forth herein.
If the Availability of the Brandcast Managed Service Offerings for a given month is less than the applicable Uptime Commitment, but 99% or higher, Subscriber will receive a 5% service credit against its subsequent payment obligations (“Service Credit”) for the affected Brandcast Managed Service Offerings for such month. If the Availability of the Brandcast Managed Service Offerings for a given month is 98% or higher but lower than 99%, Subscriber will receive a 10% Service Credit for the affected Brandcast Managed Service Offerings for such month. If the Availability of the Brandcast Managed Service Offerings for a given month is lower than 98%, Subscriber will receive a 25% Service Credit for the affected Brandcast Managed Service Offerings for such month. Credits are exclusive of applicable taxes charged to Subscriber or collected by Brandcast.
To receive service credits, Subscriber must submit a written request to firstname.lastname@example.org, within 30 days after the end of the month in which the Brandcast Managed Service Offerings failed to meet the Uptime Commitment, with sufficient evidence (including a description of the incident and duration of the incident) or Subscriber’s right to receive service credits with respect to such unavailability will be waived. If Subscriber is not current in its payment obligations when an outage occurs, remedies may accrue, but service credits will not be issued until Subscriber becomes current in its payment obligations.
Brandcast uses a third party service provider (“Monitoring Service Provider”) to monitor Availability on an ongoing basis. All measurements of Availability will be calculated on a monthly basis for each calendar month during the Term based on the records of such Monitoring Service Provider. The Monitoring Service Provider’s records regarding System Availability will be final and each Party agrees not to dispute such records.
This CCPA Data Processing Addendum (“Addendum”) forms a part of the Brandcast Master Subscription Services Agreement by and between Brandcast and Subscriber (the “Agreement”). The parties enter into this written amendment to the Agreement pursuant to the requirements of the California Consumer Privacy Act, California Civil Code Section 1798.100 et seq., (“CCPA”) as it pertains to Brandcast’s processing of Personal Information of California residents and agree as follows:
For purposes of this Addendum, the following terms shall be defined pursuant to CCPA Section 1798.140 as follows:
Means a natural person who is a California resident, as defined in Section 17014 of Title 18 of the California Code of Regulations, as that section read on September 1, 2017, however identified, including by any unique identifier.
Means the process to remove, obliterate, destroy or erase all written, electronic or other forms of information such that it cannot be retrieved in any fashion.
Means information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular Consumer or household and shall include, but is not limited to the examples of personal information identified in Cal. Civ. Code Section 1798.140(o) of the California Consumer Privacy Act.
Means selling, renting, releasing, disclosing, disseminating, making available, transferring, or otherwise communicating orally, in writing, or by electronic or other means, a Consumer’s Personal Information by the business to another business or a third party for monetary or other valuable consideration.
Means an entity that processes information on behalf of Subscriber and to which the business discloses a Consumer’s Personal Information for a business purpose pursuant to a written contract. means a sole proprietorship, partnership, limited liability company, corporation, association, or other legal entity that is organized or operated for the profit or financial benefit of its shareholders or other owners, that processes information on behalf of a business and to which the business discloses a consumer’s personal information for a business purpose pursuant to a written contract, provided that the contract prohibits the entity receiving the information from retaining, using, or disclosing the personal information for any purpose other than for the specific purpose of performing the services specified in the contract for the business, or as otherwise permitted by this title, including retaining, using, or disclosing the personal information for a commercial purpose other than providing the services specified in the contract with the business.
Brandcast and Subscriber agree that Brandcast is (a) acting as a Service Provider as defined by the CCPA and (b) processing a Consumer’s Personal Information on behalf of Subscriber solely for the specific business purpose of performing the services set forth in the Agreement.
Brandcast shall not retain, use or disclose a Consumer’s Personal Information for any purpose other than for the specific purpose of performing the services set forth in the Agreement.
Brandcast shall not Sell any Consumer Personal Information shared by Subscriber with Brandcast. Brandcast further agrees not to retain, use or disclose Consumer Personal Information obtained from Subscriber (i) outside the direct relationship between Subscriber and Service Provider, and (ii) for any purposes other than for providing the services specified in the Agreement.
Upon Subscriber’s written request, and subject to and in accordance with all applicable laws, Brandcast agrees to promptly delete any and all Consumer Personal Information.
Brandcast certifies that it understands the foregoing restrictions relating to Consumer Personal Information shared by Subscriber and shall comply with the obligations set forth herein and as otherwise required under applicable law.
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