Legal Documents

TERMS OF SERVICE

These BrandOps Terms of Service (this “Agreement”) is entered into by and between BrandOps, Inc. (“BrandOps”) and the entity or person placing an order for or accessing the Services (“Customer” or “you”). This Agreement consists of the terms and conditions set forth below, any exhibits or addenda identified below and any ordering documents, online registration, order descriptions or order confirmations referencing this Agreement (“Order Forms”). If you are accessing or using the Services on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to “you” or “Customer” reference your company.

The “Effective Date” of this Agreement is the date which is the earlier of (a) Customer’s initial access to the Services (as defined below) through any online provisioning, registration or order process or (b) the effective date of the first Order Form referencing this Agreement. This Agreement will govern Customer’s initial purchase on the Effective Date as well as any future purchases made by Customer that reference this Agreement.

Modifications: You acknowledge and agree that BrandOps may modify the terms and conditions of this Agreement in accordance with Section 12 (Modifications).

BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING THE SERVICES, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE THE SERVICES. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT.

1. BRANDOPS SERVICES.

BrandOps offers a suite of Services for data collection, analysis and recommendations, as further described below and in the Documentation.

1.1. Overview.  BrandOps “Collectors” acts as a mechanism to gather Customer Data as well as Competitor data. The data collected are deemed “Private Data” when the customer gives credentials to access internal systems. The data collected from the Internet by using sources other than Customer provided systems are deemed “Public Data”. This includes gathering information from social media such as Twitter or Facebook, scraping content from websites, or subscribing to public newsletters, etc. This data is analyzed to ascertain the frequency and types of branding and marketing activities performed. Further analysis compares this activity over a period of time, and between Customer and competitors. As further described in the Documentation, Customer maintains control over which Collectors it uses with the Services. 

1.2. Definitions

“Customer Data” means any Private Data that Customer submits to the Services. Customer Data does not, however, include any BrandOps proprietary data, Public Data, or data acquired from a third-party.

“Documentation” means the end user technical documentation provided with the Services, as may be modified from time to time.

“Laws” means all applicable local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer, international communications, and the exportation of technical or personal data.

“Sensitive Personal Information” means any of the following: (i) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards (“PCI DSS”), or other financial account numbers or credentials; (ii) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act (“HIPAA”); (iii) social security numbers, driver’s license numbers or other government ID numbers; (iv) any information deemed to be “special categories of data” of an EU resident (as defined in European Union Regulation 2016/679); or (v) other personal or sensitive information subject to regulation or protection under the Gramm-Leach-Bliley Act, Children’s Online Privacy Protection Act or similar foreign or domestic Laws. 

“Service(s)” means the specific BrandOps proprietary hosted service(s) specified on an Order Form, including any related dashboards and APIs.

“Usage Data” means BrandOps’ technical logs, account and login data, data and learnings about Customer’s use of the Services (e.g., frequency of logins, volume of Customer Data collected or sent to Destinations).  For clarity, Usage Data does not include Customer Data.

1.3. Provision of the Services. The Services are provided on a subscription basis for a set term designated on the Order Form (each, a “Subscription Term”) unless otherwise specified in Section 2 (Service Plans and Beta Releases). Customer shall purchase and BrandOps shall provide the Services as specified in the applicable Order Form.

1.4. Access to the Services.  During the Subscription Term (as defined below), Customer may access and use the Services for its internal business operations, subject to this Agreement, the Documentation, and any scope of use restrictions on the applicable Order Form.  Access to the Services is limited to Customer’s employees and contractors acting for the sole benefit of Customer (“Permitted Users”). Customer and its Permitted Users may need to register for a BrandOps account in order to access or use the Services. Account registration information must be accurate, current and complete, and will be governed by BrandOps’ Privacy Policy (currently available at https://brandops.io/legal-privacy-policy). Customer is responsible for any use of the Services by its Permitted Users and their compliance with this Agreement.  Customer shall keep confidential their user IDs and passwords for the Services and remain responsible for any actions taken through its accounts.

1.5. Use Restrictions.  Customer shall not (and shall not permit any third party to): (a) rent, lease, provide access to or sublicense the Services to a third party; (b) use the Services to provide, or incorporate the Services into, any product or service provided to a third party; (c) use the Services to develop a similar or competing product or service; (d) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to BrandOps); (e) copy, modify or create any derivative work of the Services or any Documentation; (f) remove or obscure any proprietary or other notices contained in the Services (including any reports or data printed from the Services); or (g) publicly disseminate performance information regarding the Services. 

1.6. Storage and Processing of Customer Data.  During each Subscription Term, BrandOps may store certain Customer Data submitted from Sources to enable various features and functionality of the Services. Customer acknowledges that Customer Data transmitted through the Services may be stored and processed by BrandOps.

1.7. Data Protection Addendum. The parties agree to comply with the terms of the Data Protection Addendum attached as Exhibit B.

2. SERVICE PLANS AND BETA RELEASES

2.1. Services Plans. BrandOps makes available the Services through paid plans (“Paid Plans”), a free “Free” plan (“Free Plan”) and trial plans (“Trial Plans”). Plans will be identified in the Order Form presented when Customer registers, orders or pays for the Services. Customer’s permitted scope of use (such as features available, permitted number of monthly tracked users (MTUs) and other usage limits) depends on the plan that Customer selects and will be specified on the applicable Order Form.

2.2. Paid Plans. Paid Plans are provided for the Subscription Term designated on the applicable Order Form and, unless otherwise specified on the Order Form, each Subscription Term shall automatically renew for the same period as the then-current Subscription Term unless either party gives the other written notice of termination at least thirty (30) days prior to expiration of the then-current Subscription Term (e.g., monthly Paid Plans will automatically roll over month-to-month and annual Paid Plans will automatically renew for additional 12-month periods).

2.3. Free Plans and Trial Plans

1. a) Free Plans. Under Free Plans, Customer may use the Services, and the Subscription Term is ongoing until either (a) BrandOps or Customer terminate this Agreement or (b) BrandOps ceases to offer the Free Plan, whichever occurs first.
2. b) Trial Plans. Under Trial Plans, Customer may use the Services solely to determine whether to purchase a Paid Plan, and the Subscription Term will be thirty (30) days unless otherwise specified in the Order Form. If Customer does not upgrade from a Trial Plan to a Paid Plan at the end of the Subscription Term, then Customer’s access to the Services may be limited or suspended (to be determined at BrandOps’ sole discretion) until such time as Customer terminates this Agreement or converts to a Paid Plan.
3. c)  Special Terms. Free Plans and Trial Plans may not include all features or functionality offered as part of Paid Plans, and BrandOps reserves the right to add or subtract any features or functionality at any time for such plans. BrandOps has the right to suspend or terminate a Free Plan or Trial Plan at any time for any reason.

2.4. Beta Releases. Customer may receive access to a Service (or Service features) as an alpha, beta or early access offering (“Beta Releases”). BrandOps identifies all Beta Releases as such and any usage by Customer is optional. Use of a Beta Release is permitted only for Customer’s internal evaluation during the period designated by BrandOps (or if not designated, 30 days) and may be subject to additional terms provided by BrandOps and agreed by Customer. BrandOps may suspend or terminate Customer’s access to Beta Releases at any time for any reason. Beta Releases may be inoperable, incomplete or include features that BrandOps may never release, and their features and performance information are BrandOps’ Confidential Information. ”). Notwithstanding anything else in this Agreement, BrandOps’ liability for Beta Releases will not exceed US$50.

3. CUSTOMER OBLIGATIONS

3.1. Data Collection. Subject to this Agreement and as further described in the Documentation, Customer may configure the Collector elements. 

3.2. Rights in Customer Data. Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer represents and warrants to BrandOps that (1) Customer will comply with all applicable Laws in its use of the Services (including, if applicable, the California Online Privacy Protection Act, European Union Regulation 2016/679 and similar Laws governing cross-site tracking or automated decision-making) and (2) Customer has provided all disclosures and obtained all necessary rights, consents and permissions to collect, share and use Customer Data as contemplated in this Agreement (including granting BrandOps the rights in Section 5.1 and Customer’s building, tracking, using or sharing of any user profiles, traits or audiences), without violation or infringement of (i) any third party intellectual property, publicity, privacy or other rights, (ii) any Laws, or (iii) any terms of service, privacy policies or other agreement governing the Customer Properties or Customer’s accounts with third-party data. 

3.3. No Sensitive Personal Information.  Customer specifically agrees not to use the Services to collect, store, process or transmit any Sensitive Personal Information.  Customer acknowledges that BrandOps is not a Business Associate or subcontractor (as those terms are defined in HIPAA) or a payment card processor and that the Services is neither HIPAA nor PCI DSS compliant.  BrandOps shall have no liability under this Agreement for Sensitive Personal Information, notwithstanding anything to the contrary herein. 

3.4. Indemnification by Customer.  Customer shall indemnify, defend and hold harmless BrandOps from and against any and all third-party claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any Customer Data or breach or alleged breach by Customer of Sections 3.2 (Rights in Customer Data) or 3.3 (No Sensitive Personal Information). This indemnification obligation is subject to Customer receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for Customer to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all reasonably necessary cooperation of BrandOps (at Customer’s expense for reasonable out-of-pocket costs). 

4. SECURITY.  

BrandOps agrees to use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of the Services or Customer Data.  However, BrandOps shall have no responsibility for errors in transmission, unauthorized third-party access or other causes beyond BrandOps’ control.

5. OWNERSHIP 

5.1. Customer Data. As between the parties, Customer shall retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data as provided to BrandOps.  Subject to the terms of this Agreement, Customer hereby grants to BrandOps a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of and display the Customer Data solely to the extent necessary to provide the Services to Customer during the Subscription Term.

5.2. BrandOps Technology. This is a subscription agreement for access to and use of the Services. Customer agrees that BrandOps or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Services, all Documentation and any and all related and underlying technology and documentation and any derivative works, modifications or improvements of any of the foregoing, including as may incorporate Feedback (as defined below). BrandOps may generate Usage Data to operate, improve, analyze and support the Services, for benchmarking and reporting and for BrandOps’ other lawful business purposes. Except as expressly set forth in this Agreement, no rights in the Services or any BrandOps technology are granted to Customer. 

5.3. Feedback.  Customer, from time to time, may submit comments, questions, suggestions or other feedback relating to any BrandOps product or service to BrandOps (“Feedback”). BrandOps may freely use or exploit Feedback in connection with any of its products or services.”). 

6. FEES & PAYMENT    

6.1. Fees and Payment.  All fees for Paid Plans are as set forth in the applicable Order Form and shall be paid by Customer in accordance with the payment terms set forth in the Order Form. If no payment terms are specified in the Order Form, then the following default terms apply: (i) for monthly Subscription Terms, Customer will pay all fees at the end of the month and (ii) for annual Subscription Terms, Customer will pay all fees within thirty (30) days of invoice.  Except as expressly set forth in Section 12.1 (Modifications to this Agreement), all fees are non-refundable.  BrandOps reserves the right to increase the rates specified in the Order Form upon any renewal of a Subscription Term.  Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less. 

6.2. Taxes. BrandOps’ fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, including for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever and Customer shall be responsible for payment of all Taxes associated with this Agreement and all Order Forms, except that BrandOps is solely responsible for taxes assessable against BrandOps based on BrandOps’ net income, property, and employees. If any deduction or withholding is required by law, Customer shall notify BrandOps and shall pay BrandOps any additional amounts necessary to ensure that the net amount that BrandOps receives, after any deduction and withholding, equals the amount BrandOps would have received if no deduction or withholding had been required.

6.3. Overages. If Customer exceeds its permitted usage in any month of a Subscription Term as specified in an Order Form, BrandOps reserves the right to charge overage fees in respect of such excess usage at the applicable overage rates set forth in the Order Form. Customer will pay any overage fees monthly in arrears.

7. TERM AND TERMINATION

7.1. Term. This Agreement is effective as of the Effective Date and expires on the date of expiration or termination of all Subscription Terms. This Agreement is effective as of the Effective Date and expires on the date of expiration or termination of all Subscription Terms. 

7.2. Termination for Cause. Either party may terminate this Agreement (including all related Order Forms) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees or comply with applicable scope of use restrictions) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter). For clarity, nothing in this Section7.2 limits BrandOps’ right to terminate or suspend any Free Plan or Trial Plan as set forth in Section 2.3 (Free Plans and Trial Plans).

7.3. Suspension of Services. Without limiting BrandOps’ termination or other rights hereunder, BrandOps reserves the right to suspend Customer’s access to the Services (and any related services) in whole or in part, without liability to Customer: (i) if Customer’s account is thirty (30) days or more overdue; (ii) for Customer’s breach of Sections 1.4 (Access to the Services), 1.5 (Use Restrictions) or 3 (Customer Obligations); or (iii) to prevent harm to other customers or third parties or to preserve the security, availability or integrity of the Services.  When practicable, BrandOps will use reasonable efforts to provide Customer with advance notice of the suspension (email sufficing).  Unless this Agreement has been terminated, BrandOps will cooperate to restore Customer’s access to the Services promptly after BrandOps verifies that Customer has resolved the issue requiring suspension. 

7.4. Effect of Termination. Upon any expiration or termination of this Agreement, Customer shall immediately cease any and all use of and access to the Services (including any and all related BrandOps technology), and delete (or, at BrandOps’ request, return) any and all copies of the Documentation, any BrandOps passwords or access codes and any other BrandOps Confidential Information in its possession. Customer acknowledges that following termination it shall have no further access to any Customer Data in the Services, and that BrandOps may delete any such data as may have been stored by BrandOps at any time.  BrandOps shall, to the extent allowed by applicable law, delete Customer Data as follows:

 – After termination of subscription services, Customer Data submitted to BrandOps is retained in inactive status for 120 days, after which it is deleted from production within 90 days and from backups within 180 days. 

Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise. 

7.5. Survival. The following Sections shall survive any expiration or termination of this Agreement: 1.5 (Use Restrictions), the disclaimers in Section 2.4 (Beta Releases), 3.4 (Indemnification by Customer), 5 (Ownership), 6.1 (Fees and Payment), 7 (Term and Termination), 8 (Warranty Disclaimer), 9 (Limitation of Remedies and Damages), 10 (Confidential Information), 12 (Modifications) and 13 (General Terms). 

8. WARRANTY DISCLAIMER.

THE SERVICES AND ALL RELATED SERVICES ARE PROVIDED “AS IS”. NEITHER BRANDOPS NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. BRANDOPS DOES NOT WARRANT THAT CUSTOMER’S USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES BRANDOPS WARRANT THAT IT WILL REVIEW THE Customer Data for accuracy or that it will preserve or maintain the Customer Data without loss.  CUSTOMER UNDERSTANDS THAT CUSTOMER DATA IS SHARED WITH DESTINATIONS AT CUSTOMER’S ELECTION AND BRANDOPS TAKES NO RESPONSIBILITY FOR ANY DESTINATION’S USE OR PROTECTION OF CUSTOMER DATA ONCE IT HAS BEEN SHARED. CUSTOMER UNDERSTANDS THAT IT IS RESPONSIBLE FOR PUTTING IN PLACE ANY CONTRACTUAL ARRANGEMENTS WITH DESTINATIONS REQUIRED BY LAWS. BRANDOPS SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF BrandOps. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.

9. Limitation of Remedies and Damages

9.1. Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY (NOR ITS SUPPLIERS) SHALL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. 

9.2. Liability Cap BRANDOPS’ (AND ITS SUPPLIERS’) ENTIRE LIABILITY TO CUSTOMER ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY CUSTOMER TO BRANDOPS DURING THE PRIOR TWELVE (12) MONTHS UNDER THIS AGREEMENT.  

9.3. Excluded Claims. “Excluded Claims” means (a) any claim arising from Customer’s breach of Sections 1.5 (Use Restrictions), 3.2 (Rights in Customer Data) or 3.3 (No Sensitive Personal Information); or (b) any amounts payable to third parties pursuant to Customer’s indemnification obligations under Section 3.4 (Indemnification by Customer).  

9.4. Nature of Claims and Failure of Essential Purpose.  The parties agree that the waivers and limitations specified in this Section 9 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

10.  CONFIDENTIAL INFORMATION.

Each party (as “Receiving Party”) agrees that all code, inventions, know-how, business, technical and financial information it obtains from the disclosing party (“Disclosing Party constitute the confidential property of the Disclosing Party, (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure.  Any BrandOps technology, performance information relating to the Services, and the terms and conditions of this Agreement shall be deemed Confidential Information of BrandOps without any marking or further designation.  Except as expressly authorized herein, the Receiving Party shall (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement.  The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know (including, for BrandOps, the subcontractors referenced in Section 13.10), provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 10 and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Section 10.  The Receiving Party’s confidentiality obligations shall not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information.  The Receiving Party may make disclosures to the extent required by law or court order, provided the Receiving Party notifies the Disclosing Party in advance and cooperates in any effort to obtain confidential treatment.  The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law. 

11. CO-MARKETING. Customer agrees to participate in reasonable marketing activities that promote the benefits of the Services to other potential customers and to use of Customer’s name and logo on BrandOps’ website and promotional materials. Customer agrees that BrandOps may disclose Customer as a customer of BrandOps.

12. MODIFICATIONS

12.1. Modifications to this Agreement. BrandOps may modify the terms and conditions of this Agreement (which may include changes to Services pricing and plans) from time to time with notice to Customer in accordance with Section 13.5 (Notice).

1. a) Free Plans and Trial Plans. If Customer has a Free Plan or a Trial Plan, any modifications will become effective immediately, and if Customer objects to the modifications, its exclusive remedy is to terminate this Agreement and cease using the Services.
2. b) Paid Plans. If Customer has a Paid Plan, the following terms apply: Unless a shorter period is specified by BrandOps (e.g., due to changes in the law or exigent circumstances), the modifications become effective upon renewal of Customer’s current Subscription Term or entry into a new Order Form. If BrandOps specifies that the modifications to the Agreement will take effect prior to Customer’s next renewal or order and Customer notifies BrandOps in writing of its objection to the modifications within thirty (30) days after the date of such notice, BrandOps (at its option and as Customer’s exclusive remedy) will either: (a) permit Customer to continue under the existing version of this Agreement until expiration of the then-current Subscription Term (after which time the modified Agreement will go into effect) or (b) allow Customer to terminate this Agreement and receive a prorated refund of any fees Customer has pre-paid for use of the Services for the terminated portion of the applicable Subscription Term. Customer may be required to click to accept or otherwise agree to the modified Agreement in order to continue using the Services, and, in any event, continued use of the Services after the updated version of this Agreement goes into effect will constitute Customer’s acceptance of such updated version.

12.2. Changes to Policies. In addition, BrandOps may modify the security terms described in Exhibit A (Information Security Policy) from time to time to reflect process improvements or changing practices (but the modifications will not materially decrease BrandOps’ obligations as compared to those in such policies as of the Effective Date). Policy modifications will apply automatically on the effective date specified by BrandOps and the Customer objection procedures in Section 12.1 (Modifications to this Agreement) will not apply.

13. GENERAL TERMS

13.1. Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.  Neither party may assign this Agreement without the advance written consent of the other party, except that BrandOps may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of BrandOps’ assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 13.1 will be null and void.

13.2. Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect. 

13.3.   Governing Law; Jurisdiction and Venue. This Agreement shall be governed by the laws of the State of Texas and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods.  

13.4.   Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action. 

13.5.   Notice. Any notice or communication required or permitted under this Agreement shall be in writing.  If to BrandOps,  notices must be provided to the address set forth below (BrandOps Contact Information) and shall be deemed to have been received (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail.  If to Customer, BrandOps may provide notice to Customer’s email address on file or through the Services. Any email notices shall be deemed to have been received upon delivery. Either party may update its address with notice to the other party.

BrandOps Contact Information for Legal Notices:

Legal notices should be sent to:

Attn: BrandOps Legal
BrandOps, Inc. 1111 Williams Blvd, Springfield, IL 62704

With a copy also provided to: info@brandops.io 

13.6. Waivers. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived.  

13.7.   Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement.  No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect. In this Agreement, headings are for convenience only and “including”, “e.g.”, and similar terms will be construed without limitation. Customer acknowledges that the Services are on-line, subscription-based products, and that in order to provide improved customer experience BrandOps may make changes to the Services, and BrandOps will update the applicable Documentation accordingly.

13.8.   Force Majeure.  Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events that occur after the signing of this Agreement and that are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.

13.9.   Subcontractors. BrandOps may use the services of subcontractors and permit them to exercise the rights granted to BrandOps in order to provide the Services under this Agreement.  These subcontractors may include, for example, BrandOps’ hosting, infrastructure and CDN providers. BrandOps remains responsible for compliance of any such subcontractor with the terms of this Agreement and the overall performance of the Services as required under this Agreement. 

13.10.  Subpoenas.  Nothing in this Agreement prevents BrandOps from disclosing Customer Data to the extent required by law, subpoenas, or court orders, but BrandOps shall use commercially reasonable efforts to notify Customer where permitted to do so.

13.11. Independent Contractors.  The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties.  Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.

13.12.  Export Control.  In its use of the Services, Customer agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions.  Without limiting the foregoing, (i) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (ii) Customer shall not (and shall not permit any of its users to) access or use the Services in violation of any U.S. export embargo, prohibition or restriction, and (iii) Customer shall not submit to the Services any information that is controlled under the U.S. International Traffic in Arms Regulations.

13.13.  Government End-Users. Elements of the Services are commercial computer software. If the user or licensee of the Services is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Services, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Services were developed fully at private expense.  All other use is prohibited.

I agree to the Terms of Service:

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Signature

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