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These Terms of Service (this “Agreement”) are a binding contract between you and Workado LLC (DBA BrandWell (“BrandWell,” “we,” or “us”). This Agreement governs your access to and use of the Services.
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS AN ARBITRATION AGREEMENT AND A CLASS ACTION/JURY TRIAL WAIVER THAT REQUIRE, UNLESS YOU OPT OUT PURSUANT TO THE INSTRUCTIONS IN SECTION 11(B), THE EXCLUSIVE USE OF FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES BETWEEN YOU AND US, INCLUDING ANY CLAIMS THAT AROSE OR WERE ASSERTED BEFORE YOU AGREED TO THESE TERMS. TO THE FULLEST EXTENT PERMITTED BY LAW, YOU EXPRESSLY WAIVE YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS, AS WELL AS YOUR RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, COLLECTIVE, PRIVATE ATTORNEY GENERAL OR REPRESENTATIVE ACTION OR PROCEEDING.
THIS AGREEMENT TAKES EFFECT WHEN YOU CLICK THE “I ACCEPT” BUTTON BELOW OR BY ACCESSING OR USING THE SERVICES (THE “EFFECTIVE DATE”). BY CLICKING ON THE “I ACCEPT” BUTTON BELOW OR BY ACCESSING OR USING THE SERVICES, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND, IF ENTERING INTO THIS AGREEMENT FOR AN ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.
IF YOU DO NOT AGREE TO THESE TERMS, PLEASE SELECT THE “I DECLINE” BUTTON BELOW OR DO NOT ACCESS OR USE THE SERVICES. IF YOU DO NOT ACCEPT THESE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICES.
“Aggregated Statistics” refers to data and information related to your usage of the services provided by BrandWell.ai, which will be used by BrandWell in an aggregated and anonymized manner. This includes compiling statistical and performance information related to the provision and operation of our services.
“Arbitration Agreement” denotes the mandatory individual arbitration provision specified in Section 11(b).
“Authorized User” pertains to your employees, consultants, contractors, and agents who are authorized by you to access and utilize the services under the rights granted to you according to this Agreement. These are individuals for whom access to the services has been purchased under this Agreement.
“Class Action/Jury Trial Waiver” refers to the provision in Section 11(c) that waives the right to participate in class actions or jury trials.
“Confidential Information” includes information related to the business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information of either party. This encompasses information shared orally or in written, electronic, or any other form or media. It should be noted that Confidential Information does not include information that: (a) is already in the public domain; (b) is known to the receiving party; (c) is lawfully obtained by the receiving party from a third party without any confidentiality obligations; or (d) is independently developed by the receiving party.
“Customer,” “you,” or “your” refers to you as the customer and includes your Authorized Users.
“Customer Account” signifies your account on the BrandWell services.
“Customer Content” encompasses any content, including profile information, comments, questions, and other content in any form or medium, that is submitted, posted, displayed, transmitted, or otherwise made available on the BrandWell services by you or any other Authorized User on your behalf. It should be noted that any output, copies, reproductions, and derivative works generated by your use of the services, as expressly permitted under this Agreement, which are derived from Customer Content, are also considered Customer Content. However, Aggregated Statistics are not classified as Customer Content.
“Documentation” refers to the user manuals, handbooks, guides, FAQs, instructional videos, and any other instructional materials provided electronically by BrandWell to you. These materials pertain to the services offered by BrandWell and are accessible at brandwell.ai.
“Feedback” includes any communications or materials sent to us via mail, email, telephone, or any other means, suggesting or recommending changes to the services provided by BrandWell. This includes, but is not limited to, suggestions for new features or functionality or any comments, questions, suggestions, ideas, or similar input relating to the services.
“Intellectual Property Rights” encompass all rights relating to patents, copyrights, mask work rights, moral rights, rights of publicity, trademarks, trade dress and service mark rights, goodwill, trade secret rights, and any other intellectual property rights that exist now or may come into existence in the future. This includes applications, registrations, renewals, and extensions of such rights under the laws of any state, country, territory, or jurisdiction.
“BrandWell IP” refers to (i) the services, including all materials contained or transferred within, such as software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, and music, (ii) the Documentation, (iii) and all intellectual property provided to you or any other Authorized User in connection with the aforementioned. It should be noted that BrandWellIP includes Aggregated Statistics and any information, data, or other content derived from BrandWell.ai’s monitoring of your access to or use of the services. However, Customer Content is not included in BrandWell IP.
“Privacy Policy” refers to the privacy policy available at www.brandwell.ai/privacy-policy/.
“Services” denote the online and/or mobile services, website, and software provided by BrandWell as part of the service under this Agreement. The details of the Services can be found on BrandWell.ai’s website at https://brandwell.ai/.
“Third-Party Products” include any products, content, services, information, websites, or other materials owned by third parties that are incorporated into or accessible through the Services.
“User” or “Users” refer to all visitors, users, and other individuals who access the Services.
“User Accounts” refer to different types of accounts available for various types of Users.
(a) Eligibility. This is a contract between you and BrandWell. Before using the Services, you must carefully read and agree to this Agreement. If you do not agree, you are not permitted to use the Services. You may only use the Services if you can enter into a legally binding contract with BrandWell and comply with this Agreement, as well as all applicable local, state, national, and international laws, rules, and regulations. The Services are strictly prohibited for use by anyone under 13 years old (or under 16 years old in Europe), and such use violates this Agreement. Additionally, the Services are not available to any users who have been previously removed from the Services by BrandWell.
(b) Grant of Access. Subject to your payment of fees and compliance with all the terms and conditions of this Agreement, BrandWell grants you a limited, non-exclusive, non-transferable, and non-sublicensable right to access and use the Services for your internal business operations, during the term of this Agreement and in accordance with the terms and conditions stated herein. BrandWell will provide you with the necessary passwords and access credentials to enable your access to the Services.
(c) Documentation License. In accordance with the terms and conditions of this Agreement, BrandWell grants you a non-exclusive, non-transferable, and non-sublicensable license for your authorized users to use the Documentation solely for your internal business purposes in connection with the use of the Services.
(d) User Accounts. Your Customer Account grants you access to the Services and its associated functionality, which may be established and maintained by us at our sole discretion. We may also maintain other user accounts. If you create a Customer Account on behalf of a company, organization, or entity, the term “you” includes both you and that entity. By connecting to BrandWell using a third-party service, you authorize us to access and use your information from that service, as permitted by that service, and store your login credentials for that service. You must not use other users’ accounts without permission. When creating your Customer Account, you must provide accurate and complete information, and you are responsible for keeping this information up to date. You are solely responsible for all activities that occur under your Customer Account and must ensure the security of your Customer Account password. We encourage you to use strong passwords. Notify BrandWell immediately if there is any breach of security or unauthorized use of your Customer Account. BrandWell will not be liable for any losses caused by unauthorized use of your Customer Account. You can control your Customer Account profile and manage your interaction with the Services by adjusting the settings on your account page. By providing BrandWell with your email address, you consent to receive Services-related notices via email, including any legally required notices, instead of postal mail. We may also use your email address to send you other messages, such as updates to the Services and special offers. If you do not wish to receive such email messages, you can opt-out or adjust your preferences on your account page. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.
(e) Usage Restrictions. You must not, and you must not allow any authorized users to engage in any of the following prohibited activities: (i) copying, distributing, selling, reselling, or disclosing any part of the Services in any medium, including automated or non-automated “scraping”; (ii) using any automated system, such as “robots,” “spiders,” or “offline readers,” to access the Services in a manner that generates more request messages to BrandWell servers than a human can reasonably produce within the same time period using a conventional online web browser (excluding public search engines, which are granted revocable permission to use spiders for copying publicly available materials from the Services for the sole purpose of creating publicly available searchable indices, but not caches or archives); (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with or compromise the integrity or security of the system or decipher any transmissions to or from the servers running the Services; (v) taking any action that may unreasonably or disproportionately burden our infrastructure, as determined solely by us; (vi) uploading invalid data, viruses, worms, or other software agents through the Services; (vii) collecting or harvesting any personally identifiable information or other personal information, including account names, from the Services; (viii) using the Services for any commercial solicitation purposes; (ix) impersonating another person or misrepresenting your affiliation with a person or entity, engaging in fraudulent activities, or attempting to hide your identity; (x) interfering with the proper functioning of the Services; (xi) accessing any content on the Services through any technology or means not provided or authorized by the Services; or (xii) bypassing any measures we may employ to prevent or restrict access to the Services, including features that prevent or restrict the use or copying of any content or enforce limitations on the use of the Services or its content.
(f) Aggregated Statistics. Despite any contrary provisions in this Agreement, BrandWell may monitor your use of the Services and collect and compile aggregated statistics. All rights, titles, and interests in these aggregated statistics, as well as any intellectual property rights therein, belong solely to BrandWell. You acknowledge that BrandWell may compile aggregated statistics based on the customer content provided through the Services. You agree that BrandWell may (i) make aggregated statistics publicly available in compliance with applicable law, and (ii) use aggregated statistics to the extent permitted by applicable law, provided that such aggregated statistics do not identify you or disclose your confidential information.
(g) Reservation of Rights. BrandWell reserves all rights not expressly granted to you under this Agreement. Except for the limited rights and licenses explicitly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, any intellectual property rights or any other right, title, or interest in or to BrandWell.ai’s intellectual property.
(h) Suspension. BrandWell may, in its sole discretion and without prior notice, temporarily suspend or permanently terminate your access, as well as the access of any other authorized users, to any portion or all of the Services, with or without cause, including but not limited to situations where: (i) BrandWell reasonably determines that (A) there is a threat or attack on any BrandWell intellectual property, (B) your or any other authorized user’s use of the Services disrupts or poses a security risk to BrandWell.ai’s intellectual property or to any other customer or vendor, (C) you or any other authorized user is using the Services for fraudulent or illegal activities, (D) subject to applicable law, you have ceased your business operations, made an assignment for the benefit of creditors or a similar disposition of your assets, or become involved in any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding, or (E) providing the Services to you or any other authorized user violates applicable law; (ii) any vendor of BrandWell has suspended or terminated BrandWell.ai’s access to or use of any third-party services or products necessary for your access to the Services; or (iii) as outlined in Section 5 of this Agreement.
(i) Changes to the Services. BrandWell may, without prior notice, make changes to the Services; discontinue providing certain Services or features, either to you or to all users; or impose usage limits on the Services. BrandWell may permanently or temporarily terminate or suspend your access to the Services, with or without notice and without any liability, for any reason, including if, in our sole determination, you violate any provision of this Agreement or for no reason at all. Even after termination, for any reason, you will continue to be bound by the terms of this Agreement.
(j) Disputes with Other Users. You are solely responsible for your interactions with other users of the Services. BrandWell reserves the right, but has no obligation, to monitor disputes between you and other users. BrandWell shall not be liable for any actions or inactions of other users or for any interactions between you and other users.
(a) Customer Property. We acknowledge that Content created by you, the Customer, remains your exclusive ownership. We, at BrandWell.ai, reserve the right (but are not obligated) to remove any Customer Content shared through our Services. By submitting, posting, displaying, providing, or making available any Customer Content on or through our Services, you expressly grant BrandWell a worldwide, royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and create derivative works of the Customer Content. This license also includes the right to use your name, voice, and/or likeness as contained in the Customer Content, in connection with the operation and promotion of our Services, including modifying and enhancing our artificial intelligence models, as well as promoting and distributing our Services in any media formats and through any media channels.
Regarding your Customer Content, you affirm, represent, warrant, and covenant the following: (i) You have obtained the written consent of any identifiable individuals featured in the Customer Content to use their name or likeness as contemplated by our Services and this Agreement; (ii) You have obtained all necessary consents required by law to post any Customer Content related to third parties; (iii) Your Customer Content and our use thereof as described in this Agreement do not violate any laws or infringe upon any third-party rights, including Intellectual Property Rights and privacy rights; (iv) We may exercise the rights to your Customer Content granted under this Agreement without any obligation to pay guild fees, residuals, payments, fees, or royalties under any collective bargaining agreement or otherwise; and (v) You will not post content that includes nudity or other sexually suggestive material, hate speech, credible threats or direct attacks on individuals or groups, self-harm or excessive violence, fake or impostor profiles, content for dissemination in electoral campaigns, content that encourages violence, terrorism, or other serious harm, illegal content or content in furtherance of illegal activities, malicious programs or code, personal information of others without their consent, or spam, machine-generated content, or bulk unsolicited messages.
We, at BrandWell.ai, assume no responsibility and liability for any Customer Content posted, sent, or made available by you, other Users, or third parties via our Services. You are solely responsible for your Customer Content and the consequences of sharing, publishing, or making it available on our Services. You understand and agree that you may come across inaccurate, objectionable, inappropriate, or unsuitable Customer Content, and BrandWell shall not be liable for any damages you allege to incur in relation to any Customer Content.
(b) BrandWell Property. All Intellectual Property Rights related to BrandWelland our Services, including content posted by other Users, are the exclusive property of BrandWell and its licensors. Except as expressly provided in this Agreement, no license or rights are granted to you under these Intellectual Property Rights. You agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit, or create derivative works from any BrandWell property. Any use of BrandWell property not expressly permitted by this Agreement is strictly prohibited. The term “BrandWell property” includes BrandWell.ai’s intellectual property, aggregated statistics, and any other information, data, or content derived from our monitoring of your access to or use of our Services, excluding Customer Content. As part of this Agreement, you unconditionally and irrevocably grant BrandWell an assignment of all right, title, and interest in and to the aggregated statistics, including all Intellectual Property Rights related to them.
You may choose to submit Feedback to us, and we may invite you to do so. By submitting any Feedback, you acknowledge that it is provided voluntarily, without any obligation, and without placing BrandWell under any fiduciary or other obligation. You agree that we are free to use the Feedback without any additional compensation to you, and we may disclose the Feedback on a non-confidential basis or to anyone else. You understand that our acceptance of your submission does not waive any rights we have to use similar or related ideas already known to us or developed by our employees or obtained from sources other than you. If you or any of your employees, contractors, or agents send or transmit Feedback, we are free to use it regardless of any other obligations or limitations between you and us. All Feedback will be treated as non-confidential. On your behalf, you hereby assign all right, title, and interest in the Feedback to BrandWell.ai, and you shall ensure that your Authorized Users also assign such rights. We are free to use any ideas, know-how, concepts, techniques, or other Intellectual Property Rights contained in the Feedback for any purpose whatsoever, without any attribution or compensation to you or any third party, although we are not obligated to use any Feedback.
(c) DMCA Notice. As a company that respects artist and content owner rights, BrandWell follows the requirements of the Digital Millennium Copyright Act of 1998 (“DMCA”) when responding to alleged infringement notices.
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible through our Services, please notify our copyright agent in accordance with the DMCA. To ensure the validity of your complaint under the DMCA, provide the following information in writing: 1. An electronic or physical signature of a person authorized to act on behalf of the copyright owner; 2. Identification of the copyrighted work claimed to have been infringed; 3. Identification of the allegedly infringing material and its location on our Services; 4. Information reasonably sufficient to allow us to contact you, such as your address, telephone number, and email address; 5. A statement that you have a good faith belief that the use of the material is not authorized by the copyright owner, its agent, or the law; and 6. A statement, made under penalty of perjury, that the above information is accurate and that you are the copyright owner or authorized to act on behalf of the owner.
Submit the above information to our DMCA Agent:
Attn: Legal Department, BrandWell.ai, Inc.
Address:
BrandWell
20280 N 59th Ave
#115-141
Glendale, AZ 85308
Email: [email protected]
Please note that this procedure is exclusively for notifying BrandWell and its affiliates of alleged copyright infringement. The requirements mentioned above are intended to comply with BrandWell.ai’s rights and obligations under the DMCA, including 17 U.S.C. §512(c). However, they should not be considered legal advice. For guidance on your rights and obligations under the DMCA and other applicable laws, it is advisable to consult an attorney.
In compliance with the DMCA and other applicable laws, BrandWell may terminate User Accounts or limit access to the Services in appropriate circumstances for Users who are deemed to be repeat infringers or who infringe upon the intellectual property rights of others, whether through repeat infringement or otherwise, at our sole discretion.
User Obligations
You agree not to use our services for any purpose that is unlawful or prohibited by these Terms. This includes but is not limited to any malicious intent, infringement of intellectual property, or any behavior that could harm BrandWell’s reputation.
Intellectual Property Rights
The content created by our AI remains the property of the end user, or Customer. BrandWell retains no copyright to the content produced by its users. Instead, all copyright ownership is transferred to our paying subscription members.
(a) Acceptable Use Policy. The Services provided by BrandWell must not be utilized for any activities that are prohibited as outlined in this Acceptable Use Policy (AUP). Prohibited activities include:
(i) Replicating, distributing, selling, reselling, or disclosing any part of the Services in any form or medium, including automated or non-automated “scraping” methods.
(ii) Employing automated systems such as “robots,” “spiders,” “offline readers,” or similar technologies to access the Services in a manner that generates a higher volume of request messages to the BrandWell servers than what a human can reasonably produce within the same timeframe using a standard web browser. However, operators of public search engines are granted temporary permission to use spiders for the sole purpose of creating publicly available searchable indices of materials, provided it does not involve caching or archiving of such materials.
(iii) Transmitting spam, chain letters, or any unsolicited emails.
(iv) Attempting to interfere with, compromise the system integrity or security, or decipher any transmissions to or from the servers running the Services.
(v) Engaging in actions that, at our sole discretion, may unreasonably or disproportionately burden our infrastructure.
(vi) Uploading invalid data, viruses, worms, or any other software agents that may disrupt the Services.
(vii) Collecting or harvesting personally identifiable information or other personal information, including account names, from the Services.
(viii) Utilizing the Services for any commercial solicitation purposes.
(ix) Impersonating another person or misrepresenting your affiliation with a person or entity, engaging in fraudulent activities, or attempting to conceal your identity.
(x) Interfering with the proper functioning of the Services.
(xi) Accessing any content on the Services using unauthorized technologies or means not provided or authorized by BrandWell.
(xii) Circumventing any measures implemented by us to prevent or restrict access to the Services, including features designed to prevent or restrict the use or copying of any content or impose limitations on the use of the Services or its content.
You are required to comply with all the terms and conditions outlined in this Agreement, as well as with all applicable laws, rules, and regulations. Additionally, you must adhere to any guidelines, standards, and requirements that may be posted on the BrandWell website from time to time, including the AUP.
(b) Account Use. You are solely responsible and liable for all activities conducted through the Services and Documentation, whether directly or indirectly, resulting from access granted by you. This includes both authorized and unauthorized use of the Services, and you will be held accountable for all acts and omissions of Authorized Users. Any actions or omissions by an Authorized User that would constitute a breach of this Agreement if performed by you will be deemed a breach by you. It is your responsibility to ensure that all Authorized Users are aware of and comply with the provisions outlined in this Agreement as they apply to their use of the Services.
(c) Passwords and Access Credentials. You are responsible for maintaining the confidentiality of your passwords and access credentials associated with the Services. Under no circumstances should you sell or transfer these credentials to any other individual or entity. Promptly notify us if you become aware of any unauthorized access to your passwords or access credentials.
(d) Third-Party Products. The Services may provide access to Third-Party Products. These Third-Party Products are subject to their own terms and conditions, which will be presented to you for acceptance within the Services, either through a website link or by other means. If you do not agree to the applicable terms of any Third-Party Products, refrain from installing, accessing, or using them. Please note that BrandWell does not endorse or assume any responsibility for these Third-Party Products. If you access a Third-Party Product from the Services or share your Customer Content on any third-party website or service, you do so at your own risk. Understand that this Agreement and BrandWell.ai’s Privacy Policy do not apply to your use of such external sites. By using any Third-Party Products, including Customer Content submitted by other Users, you explicitly release BrandWell from any liability arising from such use. Furthermore, any interactions or engagements with advertisers found on the Services, such as payment, delivery of goods, or other terms, are solely between you and the respective advertisers. You agree that BrandWell shall not be held responsible for any loss or damage of any kind resulting from your dealings with such advertisers.
(a) Billing Policies. Certain aspects of the services provided by BrandWell may require payment. By opting to use the paid services, you agree to abide by our Pricing and Payment Terms, which can be found at www.BrandWell.ai/pricing. These terms are subject to updates at our discretion. We reserve the right to introduce new services with additional fees and charges, as well as modify or amend fees and charges for existing services, at any time. Any changes to our Pricing and Payment Terms will take effect in the billing cycle following the notice of such changes provided in this agreement.
(b) Credit Forfeiture Upon Cancelation. In the event of cancellation of a subscription to BrandWell, the user expressly acknowledges and agrees that any remaining or unused credits, whether in the form of post credits, words credits, or any other credits accrued during the course of their subscription, and continued access to the platform, shall be forfeited and non-refundable once their billing cycle has ended, and the user shall have no claim or entitlement to any compensation or reimbursement for such forfeited credits.
(c) No Refunds. In the event a user signs up for a paid-for plan with BrandWell, there will be no refunds once that subscription is activated. The user can cancel their plan at any time to avoid recurring billing, but BrandWell reserves the right to not refund amounts charged if the user does not cancel their subscription before the automatic renewal date.
(d) 7 Day BrandWell Trial. We require a credit card for spam and fraud prevention purposes to activate the 7-day BrandWell trial. It is 100% free during those 7 days and you are not charged anything during the trial. After the 7 day trial, your subscription will automatically begin and billing starts. You can activate your subscription early, and receive bonus post credits for doing so (you’ll see a banner at the top in-app to take advantage of this). You can cancel your trial at any time directly from the Billing page. If you cancel during your 7 day trial, will not be billed anything at all.
(e) Automatic Renewal of Subscription Fees. If you subscribe to our services, the corresponding fees as specified in your user account and/or on the checkout page will automatically renew on a monthly basis unless and until you notify us of your intent to cancel your subscription. You must submit a cancellation notice on your billing page. The cancellation will take effect before your next billing period. You understand that unless you inform us of your cancellation (via requesting cancellation from your billing screen in the app), your subscription and all associated fees will continue to renew automatically. By authorizing us or our authorized third-party payment provider (without further notice to you unless required by applicable law), we are permitted to charge you the applicable subscription fees, including any taxes, using any eligible payment method we have on record for you.
(f) Risk of Loss. Any products that may be purchased from or through our services are transported and delivered to you by an independent carrier that is not affiliated with or controlled by BrandWell. The title to the products purchased on our services, as well as the risk of loss for such products, transfers to you when we or our supplier delivers them to the carrier.
(g) Payment Information; Taxes. We accept various payment methods through Stripe, including but not limited to Mastercard, Visa, and American Express. By using our services, you agree to be bound by Stripe’s Services Agreement, which is available at https://stripe.com/us/legal. It is essential that all information you provide for purchases, transactions, or other monetary interactions with our services is accurate, complete, and up-to-date. You are responsible for all charges incurred by users of your credit card, debit card, or other payment method used in connection with purchases, transactions, or other monetary interactions with our services at the prices in effect when such charges are incurred. You will also be liable for any applicable taxes related to these purchases, transactions, or monetary interactions, if applicable.
From time to time, BrandWell and the Customer may disclose or provide access to each other’s Confidential Information. The party receiving the Confidential Information shall not disclose it to any individual or entity, except to its employees who require access to the Confidential Information in order to fulfill their responsibilities under this Agreement. These employees must be obligated to protect the Confidential Information to a degree no less stringent than what is required by this Agreement. However, both parties are permitted to disclose Confidential Information to the extent necessary: (i) to comply with a court order or any other governmental directive or applicable law, provided that the disclosing party gives prior written notice to the other party and makes reasonable efforts to secure a protective order, or (ii) to assert their rights under this Agreement, including making legally required court filings. The obligations of non-disclosure regarding Confidential Information shall commence upon the initial disclosure and remain in effect for a period of five years. However, in the case of any Confidential Information that qualifies as a trade secret according to applicable law, the obligations of non-disclosure shall continue even after the termination or expiration of this Agreement for as long as such Confidential Information remains protected as a trade secret under applicable law.
BrandWell values the security and integrity of your personal information. However, we cannot guarantee that unauthorized third parties will never succeed in circumventing our security measures or using your personal information for improper purposes. By providing your personal information, you acknowledge that you do so at your own risk.
BrandWell adheres to its Privacy Policy when providing its Services. The Privacy Policy is subject to modifications as outlined therein. By accessing, utilizing, and disclosing information to or through our Services, you acknowledge that you have examined and agreed to our Privacy Policy, and you give consent to all actions undertaken by us in relation to your information in accordance with the most recent edition of our Privacy Policy.
THE SERVICES PROVIDED BY BrandWell ARE OFFERED ON AN “AS IS” AND “AS AVAILABLE” BASIS. YOUR USE OF THE SERVICES IS AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, BrandWell PROVIDES THE SERVICES WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM BrandWell OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
BRANDWELL.AI, ITS SUBSIDIARIES, AFFILIATES, AND LICENSORS DO NOT WARRANT THE ACCURACY, RELIABILITY, OR CORRECTNESS OF THE CONTENT. FURTHERMORE, BrandWell DOES NOT WARRANT THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, BE UNINTERRUPTED OR SECURE, HAVE ANY DEFECTS OR ERRORS CORRECTED, OR BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT RESULTING FROM, DOWNLOADED, OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DOWNLOADED AND USED AT YOUR OWN RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY LIABILITY ARISING FROM SUCH USE, INCLUDING ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA.
BrandWell DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES OR ANY HYPERLINKED WEBSITE OR SERVICE. BrandWell WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
SOME STATES, PROVINCES, AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION AND LIMITATION OF CERTAIN IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GRANTS YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE. THE DISCLAIMERS AND EXCLUSIONS UNDER THIS AGREEMENT SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
Customer shall defend, indemnify, and hold harmless BrandWell.ai, its subsidiaries, agents, licensors, managers, and other affiliated companies, as well as their employees, contractors, agents, officers, and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs, or debts, including but not limited to attorney’s fees, arising from:
(i) Customer’s or Customer’s Authorized Users’ use of and access to the Services, including any data or content transmitted or received by Customer or Customer’s Authorized Users;
(ii) Customer’s or Customer’s Authorized Users’ violation of any term of this Agreement, including, without limitation, Customer’s or Customer’s Authorized Users’ breach of any of the representations and warranties mentioned above;
(iii) Customer’s or Customer’s Authorized Users’ violation of any third-party right, including, without limitation, any right of privacy or intellectual property rights;
(iv) Customer’s or Customer’s Authorized Users’ violation of any applicable law, rule, or regulation;
(v) Customer Content or any content submitted via Customer’s or Customer’s Authorized Users’ User Account, including, without limitation, misleading, false, or inaccurate information;
(vi) Customer’s or Customer’s Authorized Users’ willful misconduct; or
(vii) any other party’s access and use of the Services with Customer’s or Customer’s Authorized Users’ unique username, password, or other appropriate security code.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL BrandWell BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY:
(a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES;
(b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS;
(c) LOSS OF GOODWILL OR REPUTATION;
(d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR
(e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER BrandWell WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. UNDER NO CIRCUMSTANCES WILL BrandWell BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BrandWell ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY:
(I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT;
(II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICES;
(III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN;
(IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES;
(V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVICES BY ANY THIRD PARTY;
(VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICES; AND/OR
(VII) CUSTOMER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY.
IN NO EVENT WILL BRANDWELL.AI, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO BrandWell UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $50.00, WHICHEVER IS GREATER.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF BrandWell HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
(a) Governing Law. You agree that: (i) the services provided by BrandWell (“the Company”) shall be deemed solely based in Arizona; and (ii) the services shall be deemed passive and not give rise to personal jurisdiction over the Company, either specific or general, in jurisdictions other than Arizona. This Agreement shall be governed by the internal substantive laws of the State of Arizona, without regard to its conflict of laws principles. The parties acknowledge that this Agreement evidenced a transaction involving interstate commerce. Despite the preceding sentences concerning substantive law, the Federal Arbitration Act (9 U.S.C. §§ 1-16) (“FAA”) governs the interpretation and enforcement of the Arbitration Agreement in Section 11(b) and preempts all state laws to the fullest extent permitted by law. If the FAA is found not to apply to any issue arising from or relating to the Arbitration Agreement, then that issue shall be resolved under and governed by the law of your state of residence. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the exclusive personal jurisdiction of the federal and state courts located in Arizona for any actions for which the Company retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of the Company’s copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that Arizona is the proper and exclusive forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
(b) Arbitration. Please read this Section carefully because it requires the parties to arbitrate their disputes and limits the manner in which you can seek relief from BrandWell. This Arbitration Agreement applies to and governs any dispute, controversy, or claim between you and BrandWell that arises out of or relates to, directly or indirectly: (a) this Agreement, including the formation, existence, breach, termination, enforcement, interpretation, validity, or enforceability thereof; (b) access to or use of the services provided by BrandWell.ai, including receipt of any advertising or marketing communications; (c) any transactions through, by, or using the services; or (d) any other aspect of your relationship or transactions with BrandWell.ai, directly or indirectly, as a consumer (“Claim” or collectively, “Claims”). The Arbitration Agreement shall apply, without limitation, to all Claims that arose or were asserted before or after your agreement to this Agreement.
If you are a new user of BrandWell.ai, you can reject and opt out of this Arbitration Agreement within 30 days of accepting this Agreement by emailing BrandWell at [email protected] with your first and last name and stating your intent to opt out of the Arbitration Agreement. Note that opting out of this Arbitration Agreement does not affect any other part of this Agreement, including the provisions regarding controlling law or in which courts any disputes must be brought.
For any Claim, you agree to first contact us at [email protected] and attempt to resolve the dispute with us informally. In the unlikely event that BrandWell has not been able to resolve a Claim after sixty (60) days, we each agree to resolve any Claim exclusively through binding arbitration by AAA before a single arbitrator (the “Arbitrator”), under the Expedited Procedures then in effect for AAA (the “Rules”), except as provided herein. In the event of any conflict between the Rules and this Arbitration Agreement, this Arbitration Agreement shall control. AAA may be contacted at www.adr.org, where the Rules are also available. The arbitration will be conducted in the U.S. county where you live or Arizona, unless you and BrandWell agree otherwise. If you are using the services for commercial purposes, each party will be responsible for paying any AAA filing, administrative, and arbitrator fees in accordance with AAA rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees, and reasonable costs for expert and other witnesses. If you are an individual using the services for non-commercial purposes: (i) AAA may require you to pay a fee for the initiation of your case unless you apply for and successfully obtain a fee waiver from AAA; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. You and BrandWell agree that the Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether the Agreement, any provision of the Agreement, is unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, unconscionability, or estoppel.
Nothing in this Section shall be deemed as preventing BrandWell from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Intellectual Property Rights, or other proprietary rights or preventing you from asserting claims in small claims court if your claims qualify and so long as the matter remains in such court and advances on only an individual (non-class, non-representative) basis.
If this Arbitration Agreement is found to be void, unenforceable, or unlawful, in whole or in part, the void, unenforceable, or unlawful provision, in whole or in part, shall be severed. Severance of the void, unenforceable, or unlawful provision, in whole or in part, shall have no impact on the remaining provisions of the Arbitration Agreement, which shall remain in force, or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement. Notwithstanding the foregoing, if the Class Action/Jury Trial Waiver is found to be void, unenforceable, or unlawful, in whole or in part, because it would prevent you from seeking public injunctive relief, then any dispute regarding the entitlement to such relief (and only that relief) must be severed from arbitration and may be litigated in a civil court of competent jurisdiction. All other claims for relief subject to arbitration under this Arbitration Agreement shall be arbitrated under its terms, and the parties agree that litigation of any dispute regarding the entitlement to public injunctive relief shall be stayed pending the outcome of any individual claims in arbitration.
(c) Class Action/Jury Trial Waiver. WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICES FOR PERSONAL, COMMERCIAL, OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AND BrandWell AGREE THAT THE ARBITRATOR MAY AWARD RELIEF ONLY TO AN INDIVIDUAL CLAIMANT AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF ON YOUR INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED MAY NOT AFFECT OTHER BrandWell USERS. YOU AND BrandWell FURTHER AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND BrandWell ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO BRING, JOIN, OR PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND AS A PLAINTIFF OR CLASS MEMBER.
(a) Entire Agreement/Severability. This Agreement, together with any amendments and any additional agreements you may enter into with BrandWell in connection with the Services, shall constitute the entire agreement between you and BrandWell concerning the Services. Except as otherwise stated in Section 11(b), if any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction.
(b) Modifications. You acknowledge and agree that we have the right, in our sole discretion, to modify this Agreement from time to time, and that modified terms become effective on posting. We will notify you of material modifications through direct email or a visible banner in the Services. You are responsible for reviewing and becoming familiar with any such modifications. Your continued use of the Services after the effective date of the modifications will be deemed acceptance of the modified terms. BrandWell will provide at least 30 days’ advance notice of changes to any service level that BrandWell reasonably anticipates may result in a material reduction in quality or services.
(c) Export Regulation. The Services utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Services or the software or technology included in the Services to, or make the Services or the software or technology included in the Services accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, regulation, or rule. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services or the software or technology included in the Services available outside the US.
(d) US Government Rights. Each of the software components that constitute the Services and the Documentation is a “commercial product” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the Services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government customers and their contractors.
(e) No Waiver. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and BrandWell.ai’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision. Any failure to act by us with respect to a breach of this Agreement by you or others does not constitute a waiver and will not limit our rights with respect to such breach or any subsequent breaches.
(f) Notices. Unless otherwise provided for in this Agreement, any notices to us must be sent to our corporate headquarters at 20280 N 59th Ave | #115-141 Glendale, AZ 85308 and must be delivered either in person, by certified or registered mail, return receipt requested and postage prepaid, or by recognized overnight courier service, and are deemed given upon receipt by us. Notwithstanding the foregoing, you hereby consent to receiving electronic communications from us.
BrandWell may provide notifications, whether such notifications are required by law or are for marketing or other business-related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, as determined by BrandWell in our sole discretion. BrandWell reserves the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in this Agreement. BrandWell is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.
(g) Assignment. This Agreement, and any rights and licenses granted hereunder, is personal to you and may not be assigned or transferred for any reason whatsoever without our prior written consent, and any action or conduct in violation of the foregoing will be void and without effect. We expressly reserve the right to assign this Agreement and to delegate any of its obligations hereunder.
Please contact us at [email protected] with any questions regarding this Agreement.
This SOFTWARE AS A SERVICE AGREEMENT (the “Agreement”) is entered into as of the Effective Date, by and between you (the “Customer”) and BrandWell (“BrandWell”), an Arizona company with offices at 20280 N 59th Ave | #115-141 Glendale, AZ 85308. BrandWell and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.”
The Parties agree as follows:
“Affiliate” of a Party means any entity that, directly or indirectly through one or more intermediaries, is controlled by, or is under common control with, such Party. For purposes of this definition, the “control” of an entity means the direct or indirect ownership or control of more than 50% of the voting interests of such an entity.
“Beta Services” means the features and/or functionality of the Services that may be made available to Customer to try at its option at no additional charge and which are clearly designated as beta, pilot, limited release, non-production, early access, evaluation, labs or by a similar description.
“Confidential Information” means all confidential and proprietary information of a Party (“Disclosing Party”) disclosed to the other Party (“Receiving Party”), whether orally or in writing, that is either marked or designated as confidential at the time of disclosure to the Receiving Party, or that a reasonable person should consider confidential or proprietary given the nature of the information and the circumstances under which it is disclosed. BrandWell’s Confidential Information shall include the BrandWell Property and the terms of all Order Forms. Notwithstanding the foregoing, Confidential Information shall not include any information that the Receiving Party can show: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party; (iii) was independently developed by the Receiving Party without reference to any Confidential Information of the Disclosing Party (excluding patentable subject matter which is not subject to this exclusion); or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
“Customer Property” means any content (including text, images, illustrations, charts, tables, and other materials) supplied by Customer to BrandWell, either directly through the Service or indirectly through the integration with a Third Party Product.
“Documentation” means all documentation and other instructional material made available by BrandWell regarding the use of the Services.
“Effective Date” means the effective date of the applicable Order Form you have signed with BrandWell.
“BrandWell Property” means (i) the Services, (ii) the Documentation, and (iii) all content and other materials and software supplied by BrandWell in connection with, or used by BrandWell in providing, any Services.
“Order Form” means an ordering document for Services purchased from BrandWell that has been executed hereunder by the Parties and that references this Agreement.
“Output” means the output generated and returned by the Services based on the inputs to the Services provided by Customer and its Users. For the avoidance of doubt, “Services” shall not be deemed to include the Output.
“Personal Data” means any information relating to an identified or identifiable natural person (‘data subject’) where an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as name, an identification number, location data, an online identifier or to one or more factors specific to their physical, physiological, mental, economic, cultural or social identity of that natural person.
“Processing/to Process/Processed” means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, or erasure or destruction.
“Subprocessor” means any third-party data processor engaged by BrandWell, including BrandWell’s Affiliates, that receives Customer Property from BrandWell for Processing on behalf of Customer and in accordance with Customer’s instructions (as communicated by BrandWell) and the terms of its written subcontract.
“Services” means the software services and platform provided by BrandWell, including (i) the web and other user interfaces, applications, and software provided to Users, and (ii) any modifications, updates, derivative works, optional modules, custom or standard enhancements, updates, and upgrades to or of any of the foregoing.
“Subscription Term” means the subscription period set forth in the applicable Order Form during which BrandWell agrees to provide the Services to Customer.
“Third Party Products” means certain third-party applications, systems, or services used by Customer, but not supplied by BrandWell, that are designed to interoperate with the Services (for example, third-party ticketing and email services from which the Services can import Customer Property).
“Users” means all users that are authorized to access Customer’s account on the Services.
a. Provision of Services. Subject to the payment of all applicable Fees and for the applicable Subscription Term, BrandWell hereby grants to Customer a non-sublicensable, non-transferable, non-exclusive right to access and use the Services in accordance with the terms and conditions of this Agreement and the applicable Order Form.
a. Fees. Customer will pay BrandWell all fees specified in or otherwise incurred pursuant to an Order Form (“Fees”) in accordance with this Section 3 and the applicable Order Form. If Customer adds additional Services during a Subscription Term (a “Subscription Upgrade”), any incremental Fees associated with such Subscription Upgrade will be prorated over the remaining period of the then-current Subscription Term and charged to Customer and due and payable in accordance with Section 3(b). In addition, unless otherwise set forth in an Order Form, Customer will be deemed to have executed a Subscription Upgrade with BrandWell if its usage of the Services exceeds the previously purchased usage levels. In any renewal Subscription Term of such Order Form, the Fees will reflect any such Subscription Upgrades. Fees are quoted and payable in United States dollars. Payment obligations are non-cancellable and Fees paid are non-refundable, except as otherwise expressly set forth in this Agreement.
b. Invoices and Payment. By providing a credit card or other payment method accepted by BrandWell(“Payment Method”) for the Services, Customer agrees that BrandWell Is authorized to charge to the elected Payment Method all applicable Fees when due, and any other charges Customer may incur in connection with Customer’s use of the Services. For all purchased Services, the Payment Method will be charged on a monthly basis or at the interval indicated in the applicable Order Form. If BrandWell does not collect a Payment Method from Customer at the time of purchase, BrandWell will invoice Customer for the charges at the email address on file with BrandWell. Customer will pay all invoiced amounts within thirty (30) calendar days of the invoice date. Unless otherwise specified in an Order Form, Customer will pay all Fees on an annual, prepaid basis. Overdue invoices are subject to a finance charge of 1.5% per month or the maximum permitted by law, whichever is lower, plus all expenses of collection.
c. Taxes. Customer is solely responsible for the payment of all taxes, assessments, tariffs, duties, or other fees imposed, assessed, or collected by or under the authority of any governmental body arising from BrandWell.ai’s provision of the Services hereunder (collectively, “Taxes”), except any taxes assessed upon BrandWell.ai’s net income. If BrandWell Is required to directly pay Taxes related to Customer’s use or receipt of any Services, Customer agrees to promptly reimburse BrandWell for any amounts paid by BrandWell.
d. Credits. BrandWell may, at its sole discretion, choose to offer credits for the Services in various ways, including but not limited to, coupons, promotional campaigns, and referrals for BrandWell.ai’s services such as training. BrandWell reserves the right to award credits at its sole discretion. Credits have no monetary or cash value and can only be used by Customer to offset Customer’s subsequent payments of Fees for the Services. Credits may only be applied to Fees due for the Services specifically identified by BrandWell when issuing the credit. Credits can only be used by Customer and are non-transferable. To the extent that Customer has been awarded credits, unless the instrument (including any coupon) states an earlier expiration date, credits shall expire and no longer be redeemable twelve (12) months from the date the credit was issued. Monthly recurring credits are reset every billing period.
a. BrandWell Property. As between BrandWell and the Customer, the Customer retains all rights, title, and interest in and to the Customer Property, including all patent, copyright, trade secret, trademark, or other intellectual property rights embodied in or related to the Customer Property. Except as expressly set out in this Agreement, no right, title, or license under any Customer Property is granted to BrandWell or implied hereby, and for any Customer Property that is licensed to BrandWell.ai, no title or ownership rights are transferred to BrandWell with such license.
TL;DR – the content created by our AI remains the property of the Customer, or end user. BrandWell retains no copyright to the content produced by its users. Instead, all copyright ownership is transferred to our paying subscription members.
You agree not to use our services for any purpose that is unlawful or prohibited by these Terms. This includes but is not limited to any malicious intent, infringement of intellectual property, or any behavior that could harm BrandWell’s reputation.
b. Customer Property. As between BrandWell And the Customer, BrandWell Retains all right, title, and interest in and to the BrandWell Property, including all patent, copyright, trade secret, trademark, or other intellectual property rights embodied in or related to the BrandWell Property. Except as expressly set out in this Agreement, no right, title, or license under any BrandWell Property is granted to the Customer or implied hereby, and for any BrandWell Property that is licensed to the Customer, no title or ownership rights are transferred to the Customer with such license.
c. Licenses to BrandWell. The Customer hereby grants BrandWell a limited, non-exclusive, non-transferable (except in connection with the permitted assignment of this Agreement or to its authorized contractors), and royalty-free license to access and use the Customer Property made available to BrandWell or any of its Affiliates, solely as necessary for BrandWell to (i) provide the Services to the Customer pursuant to this Agreement, and (ii) train the artificial intelligence models developed by BrandWell and its third-party service providers to provide the Services, including sharing select portions of Customer Property to third-party contractors (subject to confidentiality and security obligations at least as restrictive as this Agreement, with BrandWell Being responsible for all actions and omissions of such contractors), provided, however, that such Customer Property used for this purpose must be aggregated and de-identified so that it cannot identify the Customer or its Users. Additionally, the Customer grants BrandWell a non-exclusive, revocable license to use the Customer’s trademarks and logos to identify the Customer as a subscriber of the Services; provided that the Customer may revoke such consent at any time in its sole discretion. By submitting to BrandWell any unsolicited suggestions, enhancement requests, comments, feedback, or other input relating to the Services (“Feedback”), the Customer and its Users (as applicable) grant to BrandWell a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate such Feedback into the Services in any manner.
d. License to the Customer. BrandWell hereby grants the Customer a limited, non-exclusive, non-transferable (except in connection with the permitted assignment of this Agreement), and royalty-free license to access and use the Output made available to the Customer or any of its Affiliates, solely in accordance with the terms of this Agreement.
a. Hosting and Processing. Unless otherwise specifically agreed to in writing by BrandWell (“Company”), Customer Property may be hosted by Company or its Affiliates, or their respective authorized third-party service providers, in the United States, the European Economic Area (“EEA”), or the United Kingdom.
b. Transfer of Personal Data. To the extent that Personal Data within the Customer Property originates from a User or End-User in the EEA, as further described in the Data Processing Agreement (“DPA”), Company will ensure that, pursuant to (i) the EU Regulation 2016/679 and any applicable national laws made under it; and (ii) the Swiss Federal Act of 19 June 1992 on Data Protection (as may be amended or superseded), if Personal Data within Customer Property is transferred to a country or territory outside of the EEA (a “non-EEA country”), then such transfer will only take place if: (i) the non-EEA country in question ensures an adequate level of data protection based on a decision by the European Commission; (ii) one of the conditions listed in Article 46 or 49 of the GDPR (or its equivalent under any successor legislation) is satisfied; or (iii) the Personal Data is transferred on the basis of binding corporate rules.
c. Data Processing Agreement. The Data Processing Agreement with Company (“DPA”) is accessible for review at brandwell.ai/privacy-policy/. Upon execution of an Order Form by Customer, the DPA shall be fully incorporated by reference in, and become a part of, this Agreement.
d. Subprocessors. Customer acknowledges and agrees that Company may use Subprocessors, who may access Customer Property, to provide, secure and improve the Services. Company shall be responsible for the acts and omissions of its Subprocessors to the same extent that Company would be responsible if Company was performing the services of each Subprocessor directly under the terms of this Agreement. A list of Subprocessors can be found here: https://brandwell.ai/privacy-policy/.
e. In-Product Cookies. In the course of customer or user interactions with the Services, cookies and similar technologies may be deployed by our online data partners or vendors to correlate such activities with other personal information they, or third parties, may possess about you, including but not limited to your email address or online profiles. We, or third-party service providers acting on our behalf, may subsequently use this information to send communications or marketing materials to the associated emails or profiles. You retain the right to opt out of such communications at any time, either by following the instructions provided in the correspondence or by contacting [email protected].
f. Information Security Requirements. Company will maintain an information security program (including the adoption and enforcement of internal policies and procedures) designed to (a) secure the Services and Customer Property against accidental or unlawful loss, access, or disclosure, (b) identify reasonably foreseeable and internal risks to security and unauthorized access, and (c) minimize security risks, including through risk assessment and regular testing. As part of this information security program, Company shall implement the security measures available at https://brandwell.ai/privacy-policy/.
a. Confidentiality. During the term of this Agreement and for a period of three (3) years thereafter, BrandWell (“Recipient”) agrees to protect the confidentiality of the Confidential Information of the other party (“Discloser”) in the same manner that it protects the confidentiality of its own proprietary and confidential information of a like kind. Recipient may disclose Confidential Information of Discloser with Discloser’s consent or to its Affiliates, officers, directors, employees, subcontractors, agents, or prospective financing sources or acquirers who need to know such information in connection with this Agreement and who are bound by written agreements requiring the protection of such Confidential Information. This Section 6 shall supersede any nondisclosure agreement by and between BrandWell and the counterparty entered prior to the Effective Date that would purport to address the confidentiality of Confidential Information, and such agreement shall have no further force or effect with respect to either party’s Confidential Information.
b. Compelled Disclosure. If Recipient is compelled by law to disclose Confidential Information of Discloser, it shall provide Discloser with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Discloser’s cost, if Discloser wishes to contest the disclosure.
c. Return of Confidential Information. At any time upon the request of Discloser, Recipient will destroy all Confidential Information of Discloser, including all copies thereof and notes and other materials incorporating such Confidential Information, whether in physical or electronic form. However, Recipient shall not be required to delete any Confidential Information that is licensed to BrandWell Pursuant to Section 4(c)(ii) as long as it is aggregated and de-identified so that it cannot identify the counterparty or its users. Furthermore, Recipient shall not be required to return or destroy electronic copies that are automatically stored in accordance with Recipient’s generally applicable backup policies and which are not reasonably accessible by Recipient (“Backup Media”). All Backup Media shall remain subject to the confidentiality obligations set forth herein, notwithstanding the expiration or termination of this Agreement, as long as it remains undeleted.
d. Remedies. If Recipient discloses or uses (or threatens to disclose or use) any Confidential Information in breach of this Section 6, Discloser shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, acknowledging that any other available remedies are inadequate.
a. Mutual Warranties. Each Party represents and warrants that it has the legal power and authority to enter into this Agreement.
b. BrandWell Warranties. BrandWell Warrants to Customer that the Services purchased by Customer will, in all material respects, perform in accordance with the applicable portions of the Documentation. This warranty shall not apply to non-conformities, errors, or problems caused by acts within the control of Customer or any of its Users, or arising from Customer’s negligence or improper use of the Services, from unauthorized modifications made to the Services, from use of the Services in an unsupported operating environment or manner, or that arises from Customer’s or any third party’s software or systems (including Third Party Products).
c. Customer Warranties. Customer warrants that it will not use the Services for unlawful purposes or in a manner that infringes or otherwise violates the rights of any third party.
d. Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BUT EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, (1) THE SERVICES ARE PROVIDED “AS-IS”; (2) NEITHER PARTY MAKES ANY ADDITIONAL WARRANTY, CONDITION, REPRESENTATION, UNDERTAKING OR GUARANTY OF ANY KIND TO THE OTHER PARTY, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, (3) EACH PARTY HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, CONDITIONS, REPRESENTATIONS, UNDERTAKINGS AND GUARANTIES, INCLUDING, WITHOUT LIMITATION, ANY WITH RESPECT TO TITLE, MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, AND (4) BRANDWELL.AI’S LIABILITY UNDER ANY IMPLIED OR STATUTORY WARRANTY, CONDITION, REPRESENTATION, UNDERTAKING OR GUARANTY WHICH CANNOT BE LEGALLY EXCLUDED IS LIMITED IN RESPECT OF THE SERVICES TO SUPPLYING THE SERVICES AGAIN OR PAYING THE COST OF SUPPLYING THE SERVICES AGAIN. IN ADDITION, BrandWell DOES NOT GUARANTEE THERE WILL BE NO LOSS OR CORRUPTION OF CUSTOMER PROPERTY STORED BY BRANDWELL. CUSTOMER AGREES TO MAINTAIN A COMPLETE AND ACCURATE COPY OF ALL CUSTOMER PROPERTY IN A LOCATION INDEPENDENT OF THE SERVICES.
e. Beta Services. BrandWell May make Beta Services available to Customer at no charge, and Customer may choose to try such Beta Services at its sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms that will be presented to Customer. Beta Services are not considered “Services” under this Agreement for purposes of Section 7 (Warranties; Disclaimer) and Sections 8(a) (Indemnification by BrandWell.ai); however, all restrictions, BrandWell.ai’s reservation of rights, Customer’s obligations concerning the Services, and Customer’s use of any Third Party Products shall apply equally to Customer’s use of Beta Services. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date otherwise specified in writing by BrandWell. BrandWell May discontinue Beta Services at any time in its sole discretion and may never make them generally available. Beta Services are provided “AS IS” with no express or implied warranty and are outside the scope of BrandWell.ai’s indemnification obligations.
a. Indemnification by BrandWell. BrandWell will defend and pay Customer, its employees, directors, and officers (the “Customer Indemnified Parties”) from and against any and all costs, damages, and expenses (collectively, “Losses”), suffered or incurred by any Customer Indemnified Party, as a result of any claim brought by a third party (“Third Party Claim”) against a Customer Indemnified Party alleging that the Services provided by BrandWell.ai, in accordance with the terms and conditions of this Agreement, infringe any patent, copyright, trademark, or trade secret rights of such third party (an “Infringement Claim”). Without limiting the foregoing, in the event that any portion of the Services is likely to, in BrandWell.ai’s sole opinion, or does become the subject of an Infringement Claim, BrandWell May, at its option and expense: (i) procure for Customer the right to continue using the allegedly infringing item, (ii) substitute a functionally equivalent non-infringing replacement for such item, (iii) modify such item to make it non-infringing and functionally equivalent, or (iv) terminate the Agreement and any outstanding Order Forms and refund to Customer prepaid unused Fees for the infringing items. BrandWell Shall have no liability for any Infringement Claim to the extent arising from: (1) Customer’s use or supply to BrandWell of any Customer Property; (2) use of the Services in combination with any software, hardware, network, or system not supplied by BrandWell of the alleged infringement relates to such combination; (3) any modification or alteration of the Services (other than by brandwell.ai); (4) the Output; or (5) Customer’s violation of applicable law or third-party rights.
b. Indemnification by Customer. Customer will defend and pay BrandWell.ai, its employees, directors, and officers (the “BrandWell Indemnified Parties”) from and against any and all Losses, suffered or incurred by any BrandWell Indemnified Party, arising from any Third Party Claim against a BrandWell Indemnified Party: (i) alleging that any Customer Property or Customer’s use of the Services beyond the license granted in this Agreement infringes, violates, or misappropriate any patent, copyright, trademark, or trade secret right of any third party or (ii) arising from Customer’s breach of the Platform Guidelines.
c. Indemnification Conditions. The Parties’ obligations under this Section 8 are contingent upon the indemnified party: (i) giving prompt written notice to the indemnifying party of any claim subject to indemnification under this Section 8, (ii) giving the indemnifying party sole control of the defense or settlement of the claim, and (iii) cooperating in the investigation and defense of such claim(s). The indemnifying party shall not settle or consent to an adverse judgment in any such claim that adversely affects the rights or interests of the indemnified party without the prior express written consent of the indemnified party, which shall not be unreasonably withheld. The rights and remedies set forth in this Section 8 are the sole obligations of the indemnifying party and exclusive remedies available to the indemnified party in the event of an applicable Third Party Claim.
a. Limitation of Liability. EXCEPT FOR CLAIMS UNDER SECTIONS 6 AND 8, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL BRANDWELL.AI’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY AND AMOUNTS ACCRUED BUT NOT YET PAID FROM CUSTOMER HEREUNDER DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH SUCH CLAIM OR CAUSE OF ACTION AROSE. THE FOREGOING LIMITATION APPLIES EVEN IF BRANDWELL.AI’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
b. Exclusion of Consequential and Related Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL BrandWell HAVE ANY LIABILITY TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOST PROFITS, LOSS OF USE OR DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY OTHER INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT BrandWell HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. BrandWell SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS, DAMAGE, OR INCONVENIENCE SUFFERED BY CUSTOMER OR BY ANY THIRD PARTY, TO THE EXTENT THAT SUCH LOSS, DAMAGE, OR INCONVENIENCE IS CAUSED BY CUSTOMER’S FAILURE TO COMPLY WITH ITS OBLIGATIONS UNDER THIS AGREEMENT.
a. Term of Agreement. This Agreement commences on the Effective Date and shall remain in effect until terminated in accordance with Section 10(c).
b. Term of Subscriptions. Customer’s access to the purchased Services from BrandWell Shall commence on the start date specified in the relevant Order Form and continue for the Subscription Term specified on such Order Form. At the expiration of each Subscription Term, the Subscription Term for all purchased Services will automatically renew for the same period as the renewing Subscription Term, unless either Party elects not to renew by notifying the other Party in writing at least 60 days before such renewal (or at any time before the renewal date, if the expiring Order Form provides for a month-to-month subscription). Except as otherwise specified in a written notice sent to Customer at least 60 days prior to a renewal (or 30 days if the expiring Order Form provides for a month-to-month subscription), brandwell.ai’s per-unit pricing for any renewal Subscription Term shall not increase by more than the greater of (i) five percent (5%) or (ii) the increase in the Consumer Price Index (CPI), in each case, over the renewing Subscription Term. Any introductory or temporary discount offered in a previous Subscription Term does not apply for a renewal Subscription Term. For clarity, the foregoing caps on price increases shall not apply to renewals in which a Customer is transitioning from a month-to-month subscription to a longer subscription.
c. Termination. Either Party may terminate this Agreement and/or any Order Form by providing written notice to the other Party in the event the other Party materially breaches any of its duties, obligations, or responsibilities under this Agreement and fails to: (i) cure such breach within thirty (30) days after receipt by the breaching Party of written notice specifying the breach or (ii) if the breaching Party is incapable of curing such breach within thirty (30) days, provide the other Party with an acceptable plan for curing such breach within ten (10) days after receipt of such notice and thereafter curing such breach in accordance with such plan. In addition, a Party may terminate this Agreement by providing written notice to the other Party if there are no Order Forms in effect for more than thirty (30) days continuously.
d. Effect of Termination. Expiration or termination of one Order Form shall not affect any other Order Form. In the event of termination of this Agreement, Customer shall cease all use of the Services.
e. Surviving Provisions. The following provisions shall survive the termination or expiration of this Agreement for any reason and shall remain in effect after any such termination or expiration: Sections 1, 3, 4, 6, 7(d), 8, 9, 10(d), 10(e), 11, and the Platform Guidelines. Termination or expiration of this Agreement shall not affect any obligation accrued or arising prior to such termination or expiration.
a. Relationship. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties, and BrandWell (“Company”) will be considered an independent contractor when performing any Services hereunder.
b. Entire Understanding. This Agreement (including the DPA (if applicable), the Platform Guidelines, the Information Security Requirements, and Order Forms, which are incorporated herein by reference) constitutes the entire agreement between the Parties as to its subject matter and supersedes all prior proposals, marketing materials, negotiations, and other written or oral communications between the Parties with respect to the subject matter of this Agreement. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any Order Form, the terms of such Order Form shall prevail. Notwithstanding any language to the contrary therein, all terms and conditions stated in any Customer purchase order or in any other ordering documentation (excluding Order Forms) are hereby rejected. Such terms will not be deemed incorporated into or form any part of this Agreement, and all such terms or conditions are null and void.
c. Modification; Waiver. Except for the Company’s modification or update of the Documentation or the Service, or any policies as necessary to comply with applicable law, rules, and regulations, no modification of this Agreement, and no waiver of any breach of this Agreement or right under this Agreement, is legally binding against the other Party unless in writing and signed or electronically accepted by both Parties.
d. Governing Law; Venue. The parties hereto agree that any dispute, claim, or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation, or validity hereof or thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be determined by final and binding arbitration in Glendale, Arizona (except for an action for interim equitable relief otherwise permitted under this Agreement and/or unless otherwise agreed by the parties), before a sole arbitrator, in accordance with the laws of the State of Arizona. The arbitration shall be administered by JAMS (or its successor) pursuant to its Comprehensive Arbitration Rules and Procedures; provided, however, if the Parties mutually elect, the arbitration can be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures instead of its Comprehensive Arbitration Rules and Procedures. The arbitrator’s decision shall be reduced to writing, signed by the arbitrator, and mailed to each of the parties and their legal counsel. All decisions of the arbitrator shall be final and binding. The arbitrator or a court of appropriate jurisdiction may issue a writ of execution to enforce the arbitrator’s judgment. Judgment may be entered upon such a decision in accordance with applicable law in any court having jurisdiction thereof. The Parties will pay their own costs (including, without limitation, attorneys’ fees) and expenses in connection with such arbitration.
e. Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other Party, which consent (1) may not be unreasonably withheld, and (2) will be deemed to have been given if the other Party fails to respond to the requesting Party’s written notice of intent to assign within fourteen (14) days of receipt of such notice; provided, however, a Party may assign this Agreement in its entirety, together with all rights and obligations hereunder, without consent of the other Party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets related to this Agreement. Any attempt by a Party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors, and permitted assigns.
f. Notices. Except for notification methods expressly permitted under the Platform Guidelines, all notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees prepaid), facsimile, email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party, and (ii) if the Party giving the Notice has complied with the requirements of this Section.
g. Anti-Corruption. Customer acknowledges and agrees that it has not received or been offered any illegal bribe, kickback, payment, gift, or thing of value from any BrandWell employees, agent, or representative in connection with this Agreement, other than reasonable gifts and entertainment provided in the ordinary course of business. Customer will promptly notify BrandWell If it offers or receives any such improper payment or transfer in connection with this Agreement.
h. Force Majeure. Except for the performance of a payment obligation, neither Party shall be liable under this Agreement for delays, failures to perform, damages, losses or destruction, or malfunction of any equipment, or any consequence thereof, caused or occasioned by, or due to fire, earthquake, flood, water, the elements, labor disputes or shortages, utility curtailments, power failures, explosions, civil disturbances, governmental actions, epidemics, shortages of equipment or supplies, unavailability of transportation, acts or omissions of third parties, or any other cause beyond its reasonable control. In the event any of the foregoing events results in BrandWell not being able to provide the Services for a period of more than thirty (30) days, then either Party may terminate the Agreement upon written notice to the other Party.
i. Export Control. The Service and related technical data and services (collectively, “Controlled Technology”) may be subject to the import and export laws of the United States, specifically the U.S. Export Administration Regulations (EAR), and the laws of any country where Controlled Technology is imported or re-exported. Customer agrees to comply with all applicable export and re-export control laws and regulations and will not export or re-export any Controlled Technology in contravention to U.S. law, nor to any prohibited country, entity, or person for which an export license or other governmental approval is required. All Controlled Technology is generally prohibited for export or re-export to Cuba, North Korea, Iran, Syria, Sudan, and any other country subject to relevant trade sanctions.
j. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
