Last updated: April 18, 2020
These Terms of Service, our Copyright Policy, and all other operating rules, policies and guidelines, each of which is incorporated by reference (collectively the “Terms”), govern your access to and use of the BrandedPlacement websites, APIs, email notifications, applications, buttons, widgets, ads and other services (collectively, the “Services”) provided by BrandedPlacement (“BrandedPlacement”, “we”, “us”, or “our” means: BrandedPlacement Inc., a Delaware Corporation with mailing address at 219 Del Prado Drive, Campbell, CA 95008. By clicking “Sign up” or by using our Services, you agree to these Terms. If you do not agree to these Terms, do not access or use our Services.
These Services facilitate the matching of persons or entities offering to create film, video, or audio media content with brand product placement (each, a “Creator”) and persons or entities who are interested in compensating a Creator for creating film, video, or audio media content with brand product placement (each, a “Brand” or “Sponsor”).
These Services are provided solely (the “Permitted Use”) to: (1) assist you in gathering information about the various types of Product Placement Opportunities (“PPOs” or a “PPO”) and Sponsors available with the Services, including profiles, projects, PPOs, sponsorship amount, and images & videos of users (each, either a “Creator Profile” or a “Brand Profile”); (2) enable you to post information regarding yourself and either your projects and PPOs, or your brand products; (3) post reviews; (4) facilitate communication with Creators with the objective of entering into a PPO Agreement; and (5) facilitate the transmission of payments from the Sponsor to the Creator under a PPO Agreement (“Agreement”).
THESE TERMS CONTAIN A MANDATORY ARBITRATION PROVISION THAT, AS FURTHER SET FORTH IN SECTION 14 BELOW, REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR ANY OTHER COURT PROCEEDINGS, OR CLASS ACTIONS OF ANY KIND.
We reserve the right to modify or otherwise change these Terms at any time by posting the updated Terms to our website(s) or through a notice provided through the Services, via e-mail or by another appropriate means of electronic communication. Any such changes will not apply to any dispute between you and us arising prior to the date on which we posted the revised Agreement incorporating such changes, or otherwise notified you of such changes. Unless we say otherwise in our notice, the updated Terms will be effective immediately, and your continued access to or use of our Services after we post the updated Terms or provide other notice of such updated Terms will confirm your acceptance of the changes. If you do not agree to the updated Terms, you must stop accessing and using our Services.
We also reserve the right to modify or discontinue, temporarily or permanently, or suspend the Services (or any part thereof) with or without notice. We may also impose limits on certain features and services or restrict your access to parts or all of the Services without notice or liability. You agree that we will not be liable to you or to any third party for any modification, suspension or discontinuance of Services.
In order to access or use the Services, you need to (a) be at or above the age of majority in your province, state, territory or country (often, but not always, 18 years old), or be 13 years or older and have your parent or legal guardian consent to these Terms on your and their behalf; and (b) have the power to enter a binding contract with us and not be barred from doing so under any applicable laws. You also promise that any registration information that you submit to BrandedPlacement is true, accurate, and complete, and you agree to keep it that way at all times. You must notify us immediately of any change in your eligibility to use the Services. We may, in our sole discretion, refuse to offer the Services to any person or entity and change these eligibility criteria at any time.
- Ownership; Limited License
The Services, including the text, graphics, images, photographs, videos, illustrations and other content contained therein, are owned by BrandedPlacement or our licensors and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, all rights in and to the Services are reserved by us or our licensors. Subject to your compliance with these Terms, you are hereby granted a limited, nonexclusive, non transferable, non-sublicensable, revocable license to access and use our Services. Any use of the Services other than as specifically authorized herein, without our prior written permission, is strictly prohibited, will terminate the license granted herein and violate our intellectual property rights.
- User Content
All information, materials and other content added, created, uploaded, submitted, distributed, or posted to the Services by users (collectively “User Content”), whether publicly posted or privately transmitted, is the sole responsibility of the person or entity who so added, created, uploaded, submitted, distributed, or posted such User Content on the Services. You represent that all User Content provided by you is in compliance with all applicable laws, rules and regulations, including, but not limited to, copyright laws. You acknowledge that your access to all User Content through the Services is at your own risk and you will be solely responsible for any damage or loss to you or any other party resulting therefrom. We do not pre-screen User Content and do not guarantee that any User Content you access on or through the Services is or will continue to be accurate.
We do not guarantee that any User Content will be made available through the Services. You acknowledge that we may establish general practices and limits concerning use of the Services, including without limitation the maximum period of time that User Content will be retained by the Services and the maximum storage space that will be allotted on our servers on your behalf. You agree that we have no responsibility or liability for the deletion or failure to store any User Content maintained or uploaded by the Services. We reserve the right to, but do not have any obligation to, (a) remove any User Content in our sole discretion, at any time, without notice to you and for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such User Content or if we are concerned that you may have violated these Terms), or for no reason at all and (b) to remove or block any User Content from the Services.
- Rights you grant to us
You retain ownership of your User Content. Using BrandedPlacement does not cause you to lose ownership of your content.
In order to host and assist you in monetizing your User Content, we do need to obtain certain non-exclusive rights from you. By submitting User Content, including any Provided Content (defined below), through the Services, you hereby grant to us a non-exclusive license to use, edit, modify, create derivative works from (such as transcriptions of User Content), aggregate, reproduce, distribute, make available, transmit, display, and perform, the User Content in connection with the operation of the Services, the promotion, advertising or marketing of the Services, and the operation of BrandedPlacement’s (and its successors’ and affiliates’) business. This license is worldwide, royalty-free, sublicensable (through multiple tiers) and transferable.
You agree that this license includes, without limitation, the right for BrandedPlacement to provide, promote, and improve the Services. We may also use this license to make User Content available to other companies, organizations or individuals who partner with BrandedPlacement for the syndication, broadcast, distribution, transmission or publication of such User Content on other media and services.
For the avoidance of doubt, such license includes any and all rights in or to the User Content, including, without limitation, copyright, rights of privacy or rights of publicity. Where applicable and permitted under applicable law, you also agree to waive and not enforce any “moral rights” or rights, such as your right to be identified as the author of your User Content, including Feedback, and your right to object to derogatory treatment of such User Content. If such moral rights are not waivable, then you at least agree not to sue us for failure to identify you as the author of any User Content or for any use of your User Content on or in connection with the Service.
You represent and warrant that you have all rights to grant such licenses to us without infringement or violation of any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights. You also agree that, if you create your User Content with one or more collaborators, you will ensure that each such collaborator either (a) has an Account and has agreed to these Terms or (b) has granted to you all of the rights that you need in order for you to grant the licenses that you grant to us herein in such User Content.
The Services may include features that allow other users and/or viewers to create User Content that is provided to you for use in connection with your User Content (“Provided Content”). If your User Content makes use of or includes any Provided Content, or any other content created by any third party, you represent and warrant that you have all rights and permissions necessary to grant the licenses granted in Section 5(a) above.
If you create, contribute content for, produce, record, participate in, contribute to, share or otherwise assist in creating any Provided Content for use by another user’s Account, you grant to such user a non-exclusive license to use, edit, modify, create derivative works from (including transcriptions of Provided Content), aggregate, reproduce, distribute, make available, transmit, display, and perform the Provided Content in connection with the operation of the Services, promotion, advertising or marketing of the Services, and the operation of BrandedPlacement’s (and its successors’ and affiliates’) business. This license is worldwide, royalty-free, sublicensable (through multiple tiers) and transferable. You acknowledge and understand that any sharing of Provided Content with one or more other users is voluntary, and the recipient of any Provided Content has no obligation to incorporate or otherwise use such Provided Content in their User Content. You also agree that, if another user decides to use your Provided Content in connection with such user’s User Content, this does not result in you acquiring an ownership interest in such User Content.
If you provide feedback, ideas or suggestions to BrandedPlacement in connection with the Service or (Feedback), you acknowledge that the Feedback is not confidential and you authorize BrandedPlacement to use that Feedback without restriction and without payment to you. Feedback is considered a type of User Content.
- User Guidelines
Objectionable Content. BrandedPlacement respects intellectual property rights and expects you to do the same. We’ve established a few ground rules for you to follow when using the Services or submitting User Content to the Service, to make sure the Service stays enjoyable for everyone. The current rules are listed below, but these may be updated, or we may provide you with additional rules, from time to time. You agree to follow these rules.
The following is not permitted for any reason whatsoever:
- copying, redistributing, reproducing, “ripping”, recording, transferring, performing or displaying to the public, broadcasting, or making available to the public any part of the Services or User Content, or otherwise making any use of the Services or User Content which is not expressly permitted under the Terms or applicable law or which otherwise infringes the intellectual property rights (such as copyright) in the Services or User Content or any part of it;
- using the Services to distribute, reproduce, record, perform or display any content for which you do not have all necessary rights;
- using the Services to import or copy any local files you do not have the legal right to import or copy in this way;
- transferring copies of cached User Content from an authorized terminal device to any other device via any means;
- reverse-engineering, decompiling, disassembling, modifying, or creating derivative works based on the Services or User Content or any part thereof unless permitted by applicable law;
- circumventing any technology used by BrandedPlacement, its licensors, or any third party to protect BrandedPlacement, the Services or User Content;
- selling, renting, sub-licensing or leasing of any part of the Services or User Content;
- circumventing any territorial restrictions applied by BrandedPlacement or its licensors;
- manipulating the Services by using a script or other automated process;
- taking any action that imposes an unreasonable load on the Services;
- removing or altering any copyright, trademark, or other intellectual property notices contained on or provided through the Services (including for the purpose of disguising or changing any indications of the ownership or source of any User Content);
- “crawling” the Services or otherwise using any automated means (including bots, scrapers, and spiders) to collect information from BrandedPlacement or the Services, provided that, and subject to compliance with any instructions posted in the robots.txt file located in the root directory associated with the Services, BrandedPlacement (i) grants to the operators of public search engines permission to use spiders to copy materials from the Services for the sole purpose of (and solely to the extent necessary for) creating publicly available, searchable indices of such materials (excluding the audio content included within an audio file), but not caches or archives of such materials, and (ii) reserves the right to revoke such permission at any time and without notice;
- framing or linking to any of the materials or information available on BrandedPlacement’s website or the Services; or
- deleting or altering any material BrandedPlacement or any other user makes available on the Services;
Please respect BrandedPlacement, the owners of the User Content, yourself, and other users of the Services. Don’t engage in any activity, submit any User Content, or register and/or use a username, which is or includes material that:
- would violate any agreement to which you are a party, such as, by way of example and not limitation, an exclusive recording agreement or publishing agreement;
- is offensive, abusive, defamatory, pornographic, threatening, obscene, or advocates or incites violence;
- is illegal, or intended to promote or commit an illegal act of any kind, including but not limited to violations of intellectual property rights, privacy rights, or proprietary rights of BrandedPlacement or a third party;
- includes your password or purposely includes any other user’s password or purposely includes personal data of third parties or is intended to solicit such personal data;
- includes malicious content such as malware, Trojan horses, or viruses, or otherwise interferes with any user’s access to the Services;
- is intended to or does harass or bully other users;
- impersonates or misrepresents your affiliation with another user, person, or entity, or is otherwise fraudulent, false, deceptive, or misleading;
- artificially promotes content;
- involves the transmission of unsolicited mass or commercial electronic mail or text messages or other forms of spam;
- involves commercial or sales activities or pyramid schemes, that are not expressly authorized by BrandedPlacement;
- exposes confidential or proprietary information of a third party or personal information about yourself that you do not wish to make available to people around the world;
- interferes with or in any way disrupts the Services, tampers with, breaches, or attempts to probe, scan, or test for vulnerabilities in the Services or BrandedPlacement’s computer systems, network, usage rules, or any of BrandedPlacement’s security components, authentication measures or any other protection measures applicable to the Services, the User Content or any part thereof; or
- conflicts with the Terms, as determined by BrandedPlacement, collectively (“Objectionable Content”).
You agree that you will not assist any person in engaging, or permit or encourage any person to engage, in any Objectionable Content.
You acknowledge and agree that posting any Objectionable Content may result in immediate termination or suspension of your Anchor account. BrandedPlacement may also reclaim your username for any reason, including, but not limited to, for the purpose of giving your username to another user of the Services, and BrandedPlacement will have no liability to you if it does so. You will also comply with other such guidelines incorporated herein by reference.
Please be thoughtful about how you use the Services and what you submit. The Services include the ability to post User Content and make certain information about you public. Remember that shared or publicly available information may be used and re-shared by other users on the Services or across the web, and may live on in perpetuity once posted, so please submit User Content on the Services carefully. BrandedPlacement has no responsibility for your choices to post User Content on the Services.
We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce these Terms, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of us, our users and the public.
The “BrandedPlacement” name and logo are trademarks and service or brand identifier’s marks of BrandedPlacement (collectively the “BrandedPlacement Trademarks”). Other company, product, and service names and logos used and displayed via the Services may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to us.
Nothing in these Terms or the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of BrandedPlacement Trademarks displayed on the Services, without our prior written permission in each instance. All goodwill generated from the use of BrandedPlacement Trademarks will inure to our exclusive benefit.
- Third Party Services
The Services may permit you to link to other websites, online services or resources, and other websites, online services or resources may contain links to the Services. When you access third party resources, you do so at your own risk. These other resources are not under our control, and you acknowledge that we are not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources. The inclusion of any such link does not imply our endorsement or any association between us and their operators.
You further acknowledge and agree that we will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such third party content, goods or services available on or through any such third party website, online service or resource.
- Monetization Services
The Services may include certain tools to help you develop, launch, operate and market your User Content for the purpose of monetizing and enabling you to collect money through your usage of the Services, such as the “Viewer Support” and “PPO Agreements” features, (collectively, the “Monetization Services”). We may implement additional operating rules, policies and procedures relating to the use of Monetization Services from time to time, by posting them to our website(s) or through a notice provided through the Services, via e-mail or by another appropriate means of electronic communication. Such rules, policies and procedures, in addition to these Terms, will govern your access to and use of the Monetization Services. To the extent you use Monetization Services in connection with your User Content, such User Content will become “Monetized Content”.
The Services permit you to create PPOs from users who have registered on our website as Creators and have chosen to allow you to view their Creator Profiles. If a Sponsor selects your PPO through the Services, you may separately enter into an agreement with that Sponsor on such terms and conditions as may be agreed to between you and that Sponsor (“PPO Agreement”). For example, the PPO Agreement may contain (a) a description of the services you will provide to the Sponsor, (b) payment terms, and (c) any other terms and conditions as communicated between you and the Sponsor through these Services or otherwise. You understand that you are performing services for the Sponsor, and not BrandedPlacement, and that BrandedPlacement is not a party to and will be in no way responsible for the performance of either you or the Sponsor under any PPO Agreement, except for facilitating the transmission of payment from the Sponsor to you on their instructions in accordance with these Terms. You further understand and agree that any content submitted through these Services pursuant to a PPO Agreement and accepted by a Sponsor shall remain publicly accessible through your social media account(s) (as specified in the PPO Agreement) for a minimum of six (6) months, or such greater term as specified in the PPO Agreement. BrandedPlacement does not make any representations or warranties of any kind in respect of a Sponsor or a PPO Agreement. You also agree to act in good faith when negotiating and performing your obligations under each PPO Agreement.
Facilitated Payments Withholding Consent
If BrandedPlacement facilitates the transmission of any payments from the Sponsor to you in connection with a PPO Agreement (each, a “Facilitated Payment”), BrandedPlacement may in its sole discretion withhold from any such Facilitated Payment any amounts that are payable to BrandedPlacement by the applicable Sponsor in connection with that PPO Agreement. BrandedPlacement is not your trustee or fiduciary in respect of any Facilitated Payments or any PPO Agreements. BrandedPlacement reserves the right, at its sole discretion, to place a hold on a Facilitated Payment, if BrandedPlacement determines that the funds may be subject to a breach of applicable law (e.g. fraud or money laundering), or if BrandedPlacement is required to cooperate with law enforcement.
Six Month Exclusivity
For a period of six (6) months commencing on the later of: (i) the date when you last communicated with a Sponsor in respect of a PPO, whether through the Services or otherwise, and (ii) the execution date of a PPO Agreement entered into with a Sponsor (the “Commencement Date”), neither you nor your agents or affiliates will enter into an agreement directly or indirectly with such Sponsor for the creation of any promotional media content, subject to the following exemptions:
- The agreement you are entering into with the Sponsor is a PPO Agreement, in respect of which BrandedPlacement will receive a fee as provided for thereunder; or
- You were engaged in good-faith negotiations with the Sponsor for the creation of that promotional media content on or before the Commencement Date; or
- You are renewing a pre-existing agreement with the Sponsor that expired after the Commencement Date.
Reviews and Comments
By submitting content to the Services or BrandedPlacement, including any Sponsor or PPO reviews, content, questions, comments, suggestions, ideas or similar information (collectively, “Submissions”), you grant BrandedPlacement and its affiliates, a worldwide, nonexclusive, royalty-free, perpetual, transferable, irrevocable and fully sublicensable right to (a) use, reproduce, modify, adapt, translate, distribute, publish, create derivative works from and publicly display and perform such Submissions throughout the world in any media, now known or hereafter devised; and (b) use the name that you submit in connection with such Submission. You acknowledge that BrandedPlacement may choose, but is not required, to provide attribution of your Submissions (for example, listing your name and city on a Sponsor or PPO review that you submit) at our discretion, and that such submissions may be shared with Sponsors and others using our Services. You further grant BrandedPlacement the right to pursue at law any person or entity that violates your or BrandedPlacement’s rights in the Submissions by a breach of these Terms. You acknowledge and agree that Submissions are non-confidential and non-proprietary.
BrandedPlacement takes no responsibility and assumes no liability for any Submissions posted or submitted by you. BrandedPlacement has no obligation to post your Submissions and reserves the right, in its absolute discretion to determine which Submissions are published with or on the Services. If you do not agree to these terms, please do not provide us with any Submissions.
You are fully responsible for the content of your Submissions, specifically including, but not limited to, reviews posted to the Service. You acknowledge that BrandedPlacement may exercise its rights (e.g. use, publish, delete) to use any Submissions without any notice to you.
You are in no way precluded from monetizing your User Content in ways other than the usage of the Monetization Services. If you do monetize your User Content outside of the Monetization Services, please note that you are still responsible for using the Services in a way that complies with these Terms.
You will ensure that all advertising or sponsorship messages contained in your User Content provided through the Monetization Services, comply with BrandedPlacement’s User Guidelines in Section 6 above, which may be updated from time to time. Notwithstanding the foregoing, you acknowledge that advertising and/or sponsorship messages submitted through the Monetization Services containing pornographic content, or for firearms, ammunition, weapons, cigarettes, tobacco or e-cigarettes, or that relate to political or religious organizations or paid advertising for any competitive product placement services, is not permitted. No data provided by BrandedPlacement or acquired by you in relation to usage of the User Content on the Services may be used for the purposes of targeting for advertisers. You shall not use the “BrandedPlacement” name or brand marks in any advertising sales collateral without prior approval from BrandedPlacement. BrandedPlacement reserves the right to remove any User Content that contains any embedded advertising and/or sponsorship messages that do not comply with these Terms. You agree that cookies may only be used in and/or in relation to the User Content to improve the user experience.
The Monetization Services may enable you to accept financial contributions from viewers who subscribe to your User Content through the Viewer Support feature (“Viewers”). You acknowledge that Viewer support is voluntary and may be cancelled at any time, and that you have no right to any future amounts from Viewers.
Fees and Payment
The amount of revenue or financial support earned through your use of the Monetization Services may be subject to certain fees retained by BrandedPlacement in accordance with the applicable sections of the Fee Schedule. Variations or changes to the Fee Schedule as they pertain to your usage of the Monetization Services may be agreed upon from time to time with BrandedPlacement in writing. BrandedPlacement reserves the right to charge you a portion of any costs of any chargeback or credit card fees or mobile platform fees that BrandedPlacement incurs in connection with its management of your Monetized Content or your usage of the Monetization Services. Without limiting anything herein to the contrary, BrandedPlacement also reserves the right to change the Fee Schedule from time to time, with reasonable prior notice to you in writing. Fees may be withdrawn from revenue prior to it becoming available to you. The ability to withdraw revenue may be delayed before it becomes available to you, or may be subject to other restrictions such as minimum amount withdrawal thresholds.
Unless stated otherwise, the amounts to be paid under this Agreement are exclusive of VAT, GST, HST, sales taxes or other similar taxes, duties, charges or assessments (“Indirect taxes”). Indirect taxes will be added on top of agreed amounts as per local legislation. Each party shall be solely responsible for payment of all Indirect taxes it is legally obliged to pay arising as a result of this Agreement or otherwise. Further each party shall be solely responsible for collection and remittance of all Indirect taxes it is legally obliged to collect and remit. Each party shall be solely responsible for payment of any tax assessed on its income. The Parties acknowledge that as of the Effective Date and to the best of their knowledge, there is no withholding tax applicable to payments due under this Agreement. In case the local law and /or changing in the law requires the application of withholding tax, both parties will work together to mitigate it..The parties further acknowledge that they will collect all relevant documentation needed in the event of a tax audit.
If BrandedPlacement believes you are abusing the Monetization Services in any way, or are being negligent in your communication Viewers, or believes that you are being negligent with your upkeep of the Monetized Content, BrandedPlacement may, in its sole discretion and without limiting other remedies, limit, suspend, or terminate your Account(s) and access to the Monetization Services, delay or remove hosted content, remove any special status associated with your Account(s), remove, not display, and/or demote listings, reduce or eliminate any discounts, and take technical and/or legal steps to prevent you from using the BrandedPlacement Services. BrandedPlacement reserves the right to, in its sole discretion, refund subscription fees paid by Viewers to your Monetized Content or to your Account, and/or payments paid by Sponsors for your Monetized Content, in which case you shall reimburse BrandedPlacement for such refund payments. To the extent that you fail to reimburse such payments to BrandedPlacement, you hereby agree that BrandedPlacement may offset such refund payments to Viewers or Sponsors against subsequent payments required to be made to you by Viewers through the Monetization Services.
You are solely responsible for your Monetized Content and your usage of the Monetization Services and compliance with any laws or regulations related to them, including without limitation, the following:
- Any claims or warranties you make in connection with the Monetization Services and any claims made by other users against you as they relate to the Monetized Content or your usage of the Monetization Services;
- Handling any comments or complaints related to your usage of the Monetization Services, including without limitation any issues related to payments, promotions, refunds or chargebacks. You agree to provide accurate and complete contact information to Viewers so that they can submit comments or complaints;
- Compliance with any consumer, securities and related laws and regulations; and
- Any claims arising out of your disparagement of Sponsors in your User Content, including any Monetized Content.
No Obligation to Examine Monetized Content.
You acknowledge and agree that BrandedPlacement is not responsible for examining or warranting the Monetized Content through the Monetization Services, and you will not attempt to hold BrandedPlacement or BrandedPlacement’s third party service providers liable for inaccuracies. You shall ensure that all Monetized Content and other content and information directly associated with your usage of the Monetization Services is accurate. You further acknowledge and agree that, while BrandedPlacement has no obligation to do so, BrandedPlacement may monitor, review, revise, modify, analyze, evaluate, obfuscate or delete the Monetized Content, including any data or content associated with the Monetized Content, to, among other things, supplement, remove or correct information, in its sole discretion, as well as to provide you with optional recommendations to consider when creating and operating the Monetized Content.
The restrictions in Section 6 above (User Guidelines) apply to your use of the Monetization Services and all Monetized Content.
We may terminate your access to all or any part of the Services at any time, for any reason, which may result in the forfeiture and destruction of all information, including User Content, associated with your Account. You agree that we will not be liable to you or any third party, including Sponsors associated with your use of the Monetization Services, for any termination of your access to or use of the Services.
If you wish to terminate your Account, you may do so by contacting us on our customer support page here.
All provisions of these Terms of Service which by their nature should survive termination will survive termination, including, without limitation, licenses of User Content, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
- Warranty Disclaimer
To the fullest extent permitted under applicable law:
We have no special relationship with you or fiduciary duty to you.
You acknowledge that we have no duty to take any action regarding: which users gain access to the Services; what content you access via the Services; or how you may interpret or use the content.
You release us from all liability for you having acquired or not acquired content through the Services. We make no representations concerning any content contained in or accessed through the Services, and we will not be responsible or liable for the accuracy, copyright compliance, or legality of material or content contained in or accessed through the Services.
The Services are provided “AS IS”, “AS AVAILABLE” and without warranty of any kind, express, statutory or implied, including, but not limited to, the implied warranties of title, non-infringement, merchantability and fitness for a particular purpose, and any warranties implied by any course of performance or usage of trade, all of which are expressly disclaimed. We and our affiliates, and our and their officers, directors, shareholders, employees, agents, suppliers, partners and third-party content providers, and any successors or assigns, do not warrant and expressly disclaim that: (i) the Services will be secure or available at any particular time or location; (ii) any defects or errors will be corrected; (iii) the Services are free of viruses or other harmful components; or (iv) the results of using the Services will meet your requirements. your use of the Services is solely at your own risk.
To the fullest extent permitted under applicable law: You will defend, indemnify, and hold harmless us, our affiliates and each of our and their respective employees, directors, suppliers, partners, contractors, third-party licensors and representatives (the “Indemnified Parties”) from all liabilities, claims, and expenses, including reasonable attorneys’ fees, that arise from or relate to (1) your breach, or alleged breach, of the Terms; (2) any User Content that you post or otherwise contribute or make available; (3) any activity in which you engage on or through the Services; (4) your violation of any law or the rights of a third party; and (5) any dispute you may have with another User or collaborator in connection with any User Content or use of the Services.
We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with us in asserting any available defenses. You agree not to involve BrandedPlacement in any dispute you may have with another User or collaborator.
- Limitation of Liability
This Section 13 applies to the fullest extent permitted under applicable law:
You agree that your sole and exclusive remedy for any problems or dissatisfaction with the Services is to stop using the Service. You agree that BrandedPlacement has no obligation or liability arising from or related to third party services made available through or in connection with the Services.
In no event will BrandedPlacement and its affiliates, and its and their officers, directors, shareholders, employees, agents, suppliers, partners or third-party licensors, and any successors or assigns, be liable for (1) any indirect, special, incidental, punitive, exemplary, or consequential damages; (2) any loss of use, data, business, or profits (whether direct or indirect), in all cases arising out of the use of or inability to use the Services, or third party services, regardless of legal theory, without regard to whether BrandedPlacement has been warned of the possibility of those damages, and even if a remedy fails of its essential purpose; or (3) aggregate liability for all claims relating to the Services more than the amounts paid by you to BrandedPlacement during the prior twelve months in question.
Nothing in the Terms removes or limits BrandedPlacement’s liability for fraud, fraudulent misrepresentation, death or personal injury caused by its negligence, and, if required by applicable law, gross negligence.
You agree that any claim against BrandedPlacement must be commenced (by filing a demand for arbitration under Section 14 or filing an individual action under Section 15(a) within one (1) year after the date the party asserting the claim first knows or reasonably should know of the act, omission, or default giving rise to the claim; and there shall be no right to any remedy for any claim not asserted within that time period. If applicable law prohibits a one-year limitation period for asserting claims, any claim must be asserted within the shortest time period permitted by applicable law.
14.1. If you are a BrandedPlacement user in the United States (including its possessions and territories), you and BrandedPlacement agree that any dispute, claim or controversy arising out of or relating in any way to the BrandedPlacement service, these Terms and this Arbitration Agreement, shall be determined by binding arbitration or in small claims court. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award and nothing in this Arbitration Agreement shall be interpreted as limiting any non-waivable statutory rights. You agree that, by agreeing to these Terms, the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and BrandedPlacement are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of this Agreement and the termination of your BrandedPlacement usership.
14.2. If you elect to seek arbitration or file a small claim court action, you must first send to BrandedPlacement, by certified mail, a written Notice of your claim (“Notice”). The Notice to BrandedPlacement must be addressed to: General Counsel, BrandedPlacement, Inc., 219 Del Prado Drive, Campbell, CA 95008 (“Notice Address”). If BrandedPlacement initiates arbitration, it will send a written Notice to the email address used for your user account. A Notice, whether sent by you or by BrandedPlacement, must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If BrandedPlacement and you do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or BrandedPlacement may commence an arbitration proceeding or file a claim in small claims court.
14.3. You may download or copy a form Notice and a form to initiate arbitration at www.adr.org. If you are required to pay a filing fee, after BrandedPlacement receives notice at the Notice Address that you have commenced arbitration, BrandedPlacement will reimburse you for your payment of the filing fee, unless your claim is for greater than US$10,000, in which event you will be responsible for filing fees.
14.4. The arbitration will be governed by the Commercial Arbitration Rules (the “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and Forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by writing to the Notice Address. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to decide, including issues relating to the scope and enforceability of this arbitration agreement. Unless BrandedPlacement and you agree otherwise, any arbitration hearings will take place in the county (or parish) of your residence. The arbitrator’s award shall be final and binding on all parties, except (1) for judicial review expressly permitted by law or (2) if the arbitrator’s award includes an award of injunctive relief against a party, in which case that party shall have the right to seek judicial review of the injunctive relief in a court of competent jurisdiction that shall not be bound by the arbitrator’s application or conclusions of law.
14.5. If your claim is for US$10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds US$10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision explaining the essential findings and conclusions on which the award is based. If the arbitrator issues you an award that is greater than the value of BrandedPlacement’s last written settlement offer made before an arbitrator was selected (or if BrandedPlacement did not make a settlement offer before an arbitrator was selected), then BrandedPlacement will pay you the amount of the award or US$5,000, whichever is greater. Except as expressly set forth herein, the payment of all filing, administration and arbitrator fees will be governed by the AAA Rules.
14.6. YOU AND BRANDEDPLACEMENT AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and BrandedPlacement agree otherwise, the arbitrator may not consolidate more than one person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void.
If this Arbitration Agreement is invalidated in whole or in part, the parties agree that the exclusive jurisdiction and venue described in Section 15 shall govern any claim in court arising out of or related to these Terms.
Governing Law and Jurisdiction.
These Terms will be governed by and construed in accordance with the laws of the United States (including federal arbitration law) and the State of California, United States of America, without regard to choice or conflicts of law principles. You agree that any dispute arising from or relating to the subject matter of these Terms or otherwise not subject to arbitration will be subject to the exclusive jurisdiction and venue of the U.S. District Court for the Northern District of California.
Entire Agreement and Sever ability.
These Terms are the entire agreement between you and us with respect to the Services and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and us with respect to the Services. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable. The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder
We will not be liable for any failure to perform our obligations hereunder where such failure results from any cause beyond our reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation.
These Terms are personal to you, and are not assignable, transferable or sublicensable by you except with our prior written consent. We may assign, transfer or delegate any of our rights and obligations hereunder, in whole or in part, without your consent and without notice to you.
No agency, partnership, joint venture, or employment relationship is created as a result of these Terms and neither party has any authority of any kind to bind the other in any respect.
Unless otherwise specified in these Terms, all notices under these Terms will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service.
Our failure to enforce any part of these Terms will not constitute a waiver of our right to later enforce that or any other part of these Terms. Waiver of compliance in any particular instance does not mean that we will waive compliance in the future. In order for any waiver of compliance with these Terms to be binding, we must provide you with written notice of such waiver through one of our authorized representatives.
The Section and paragraph headings in these Terms are for convenience only and will not affect their interpretation.
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